Ram Narayan Raikwar vs State of M.P.

Rakesh Saksena, J.—Appellant has filed this appeal against the judgment dated 17.6.1996 passed by I Additional Sessions Judge and Special Judge, Satna in Special Case No. 114/93 convicting him u/s 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to rigorous imprisonment for 6 months with fine of Rs.300/-. In default of payment of fine further rigorous imprisonment for one month.

In short, prosecution case is that on 10.11.1993, ASI of police station Nagod district Satna, Rajmani Singh received information from an informer that accused who was running a tea and betel shop near the bus stand crossing Nagod, was selling Ganja illegally. Rajmani along with head constables Ramsundar Shukla and Jai Singh reached at his shop. After giving his own search and obtaining the consent of the accused, he searched the shop in presence of Sharad Singh and Indrajit Singh and recovered a paper packet containing 25 gms of Ganja. Since accused had no licence for possessing Ganja, he seized the said Ganja and arrested the accused. He recorded the first information report Ex. P/11 u/s 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act (for brevity NDPS Act) and sent a sample of seized contraband to Forensic Science Laboratory for chemical examination. On receiving the FSL report Ex.P/10 that the seized article was Ganja, he filed the charge sheet before the Court.

Learned Special Judge framed charge u/s 20 of the NDPS Act. The accused denied the charge and pleaded false implication. According to him, Inspector Rajmani and other police officers used to consume tea and betels from his shop without payment. Whenever he demanded money for the same they threatened him to see.

Prosecution, to substantiate its case, examined Sharad Singh (PW-1), Indrajit Singh (PW-2) and Inspector Rajmani (PW-4) for proving the search and seizure of the contraband. Patwari Prabhakar Pandey (PW-3) was examined to prove the map about the location of the shop. In his defence, accused examined Safi Ahmad (DW-1). Independent witnesses Sharad Singh (PW-1) and Indrajit Singh (PW-2) did not support the prosecution case, however, relying on the evidence of Inspector Rajmani, learned Special Judge holding the appellant guilty, convicted him u/s 20(b)(i) of NDPS Act and sentenced him as mentioned above. Aggrieved by his conviction and sentence, accused/appellant has filed this appeal.

Learned counsel for the appellant submitted that it was a clear case of false implication of accused by Inspector Rajmani because he was annoyed with him on his demanding money for tea and betels consumed by him frequently. He submitted that the independent witnesses Sharad Singh and Indrajit Singh did not support the prosecution case. No other local shopkeeper was made witness of the search and seizure. The provisions of section 42 of the NDPS Act were not complied. No information received by informer was recorded nor any intimation in this regard was sent to any superior officer. No other constable or other senior officer was examined in the Court. The Ganja, allegedly seized from the shop of accused, was not produced in the Court. In these circumstances, he submitted that the trial Court committed error in convicting the accused. On the other hand, learned Panel Lawyer submitted that the evidence of Inspector Rajmani (PW-4) was reliable. His evidence was corroborated by the seizure memorandum Ex.P/1, Ex.P/2, Ex.P/3 and FSL report Ex.P/10 whereby it was confirmed that the seized article was Ganja.

I have heard the learned counsel for the parties and carefully perused the impugned judgment, evidence and record of the case.

On perusal of the evidence of Sharad Singh (PW-1) and Indrajit Singh (PW-2), it is apparent that they were taxi drivers who used to come at the bus stand. It was admitted by Sharad Singh and also by Inspector Rajmani Singh (PW-4) that there were number of other shops near the shop of accused, but it appears strange that no shopkeeper from those shops was made witness of search and seizure. Sharad Singh (PW-1) stated that police raided the shop of accused and seized a paper packet, but its seizure memorandum Ex.P/1 was made at the police station. He stated that no search of the person of accused was taken before him. He denied that 25 gms of Ganja was seized from the shop of accused. This witness was declared hostile. In cross-examination, he admitted that search and seizure memorandum Ex.P/1, Ex.P/2 and Ex.P/3 were not recorded before him. His signatures were obtained in the police station. According to him, paper packet, which was taken to police station, was not opened before him. Indrajit Singh (PW-2) was also declared hostile. He denied that Ganja was seized from the shop of accused.

Now there remained solitary evidence of ASI Rajmani (PW-4). He deposed that on receiving information from an informer that accused was selling Ganja in his Gumti at bus stand, he informed to his senior officer. This information was sent to SDO Police, but since he was not available, he along with head constables Ramsunder and Jai Singh went to the shop of accused. After obtaining the consent letter for the search from accused and giving their personal search to him, he entered the shop and searched it. They found a paper packet in the shop containing 25 gms of Ganja. The Ganja was seized in front of Sharad Singh and Indrajit Singh and seizure memorandum Ex.P/1, Ex.P/2 and Ex.P/3 were recorded. Through the office of Superintendent of Police, a sample of Ganja was sent to Forensic Science Laboratory for examination. He received the report Ex.P/10 from the Laboratory confirming the seized article to be Ganja. After investigation, he filed the charge sheet in the Court.

Learned counsel for the appellant submitted that the evidence of Inspector Rajmani Singh (PW-4) was not corroborated by any other independent source. He happened to be a police officer who himself recorded the first information report, conducted investigation and filed charge sheet. The independent witnesses before whom the said search and seizure of contraband was made, did not support the case of prosecution. In view of the fact that accused alleged that Inspector Rajmani frequently used to consume tea and betels from his Gumti without payment and that he used to intimidate him of dire consequences on his demanding price, his evidence was not worthy of reliance. This witness also acted in clear violation of the provisions of section 42 of the NDPS Act.

On perusal of the evidence of Rajmani Singh (PW-4), it is apparent that he did not record the information allegedly received by him from the informer. There appeared no evidence on record to indicate that he sent any such information in writing about the commission of the offence to any of his superior officers. Section 42 of the NDPS Act provided that if any officer authorised u/s 42 of the Act had reason to believe from personal knowledge or the information given by any person, he had to take down in writing that the offence punishable under the NDPS Act has been committed. If such officer had reason to believe that a search warrant or authorisation could not be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. In the present case, the seizure is said to have been made at about 8:30 p.m. but it is strange that it was not taken down in writing by the Inspector that he received any such information. Under provision of sub-section (2) of Section 42, it was also incumbent on the investigating officer to send a copy of the information taken down by him to his immediate official superior.

In case of Karnail Singh Vs. State of Haryana, , a constitution bench of the Apex Court observed that the officer authorised by Section 42 of the Act on receiving the information 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). If it was not feasible or practical to take down in writing the said information, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it was practicable, record the information in writing and forthwith inform the same to the official superior. Thus, 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. While total non-compliance with requirement of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay may be acceptable compliance with Section 42. If a police officer does not record the information at all and does not inform the official superior, it will be a clear violation of Section 42 of the Act The question about adequate or substantial compliance with Section 42 would be question of fact to be decided in each case.

From the record, there appears no evidence about the deposition of the seized material in the Malkhana and about it being taken out for production before the Court. It has been admitted by Inspector Rajmani (PW-4) that though he filed the charge sheet in the Court, but he did not produce the seized material in the Court. He could not give any explanation as to why he did not take any witness from the neighbouring shops and selected only taxi drivers who used to park their taxis at the bus stand. He admitted that he did not weigh the seized Ganja. It is also important to note that this witness stated that he and other police constables who accompanied him gave their personal search to accused but no memorandum in this regard was recorded and produced in the Court. Sharad Singh (PW-1) and Indrajit Singh (PW-2) denied that Inspector Rajmani and other witnesses gave their personal search before entry and search for the recovery of Ganja.

Learned counsel for the appellant placed reliance on the decision rendered by the Apex Court in the case of Jitendra and Another Vs. State of M.P., wherein it was observed that non-production of seized drugs (charas and ganja) before the trial Court was not a mere procedural irregularity, it caused prejudice to the accused, hence was fatal to the prosecution case. Similar view was taken by the Apex Court in the case of Ashok @ Dangra Jaiswal Vs. State of M.P.,

On a critical scrutiny of the evidence of Inspector Rajmani (PW-4), it seems that he is not a trustworthy or reliable witness. After receipt of the information about the commission offence by the accused, he did not record the said information in Roznamcha. Though he stated before the Court that he informed about the said information to SDO Police but the said SDO Police was not examined in the Court. He did not take any independent witness from the adjoining shops for search of the contraband in the shop of accused, instead he picked up taxi drivers from the bus stand. The aforesaid witnesses also did not support the case of prosecution in the Court. No record of the police station was produced in the Court to show that the seized article was deposited in the Malkhana. Allegedly seized Ganja which was said to be about 25 gms in quantity, was not weighed before its seizure. The seized Ganja was not produced in the trial Court. Inspector Rajmani (PW-4) was himself the person who received information, conducted the raid, seized the contraband, sent the contraband for examination to Forensic Science Laboratory and filed the charge sheet. Not even other police constables who accompanied him in search and seizure were produced before the Court in evidence. In such circumstances, the solitary evidence of Inspector Rajmani Singh (PW-4), in my opinion, does not inspire confidence, especially in view of the allegation made by the accused that he was annoyed with him because of his making demand of the price of tea and betels which he used to consume frequently.

In the aforesaid circumstances, I am of the view that the prosecution failed to prove beyond a reasonable doubt that 25 gms of Ganja was seized from the shop or possession of appellant. Learned Special Judge did not appreciate the prosecution evidence in correct perspective in holding the appellant guilty. Accordingly, the impugned judgment of conviction and sentence of the appellant passed by the trial Court u/s 20(b)(i) of the NDPS Act is set aside. He is acquitted. Bail bond and surety bond of the appellant stand discharged.

Appeal allowed.