RASHEED KHAN vs SHEIKH KABIR

This appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short ''the Code'') is directed against judgment and order dated 12/02/2015 rendered by Special Judge [under the NDPS Act,1985 (for short ''The Act'')] Rajgarh, (Biora) in case No.07/2012, whereby the appellants have been found guilty under Section 8 r/w S. 20(b)(ii)(c) of ''The Act''; each having been sentenced to undergo 10 years R.I and to pay a fine of Rs.1.00 lakh and in default of payment of fine further to suffer simple imprisonment for three years.

The prosecution story, briefly stated, is that on 10th January, 2012 around 6.40 pm S.K. Thakur (P.W.6), the then Sub Inspector, Police-station Pachore, District Rajgarh, while on patrolling duty with police staff, intercepted near Ankkhedi Tiraha, Narsinghgarh, a Indica Car bearing registration no.MP-04-BY-3781. Appellants Sitaram, V. Ravi, Ramu and Ramesh, all residents of District Mendak, (Andhra Pradesh) travelling in the car, were interrogated. Allegedly, they revealed about cannbis (ganja) being taken in the car. Pursuant to this information S.K. Thakur (P.W.6), apprised them that he would like to carry out search of the vehicle. The appellants, vide memo Ex.P1 to P4, consented for the same. On a search being carried out by S.K. Thakur (P.W.6), four gunny bags were found lying in the car, which were smelling of substance like cannabis. The gunny bags were opened on the spot. The material kept inside the gunny bags, was mixed up and weighed on the spot by calling a weighing machine from a nearby place and was found to be one quintal, one kilo & five hundred gms. The same, on physical examination, was found to be ''ganja'' therefore, after effecting seizure, two samples, each of 50 grams, were drawn from the material and sealed on the spot. The remaining material was also separately sealed in two bags. Seizure memo (Ex.P.12) was drawn in this regard. The Indica car as well as the mobile phones, held by the appellants were also seized from them. The appellants were formally arrested and on interrogation, they further revealed that they, along with one Parasuram, who fled away from the spot, have brought the contraband from Andhra Pradesh and were going to deliver it to a person named Pappu at Indore. Memo Ex.P24 to P27 were prepared in this regard. On the basis of this information, Papulal was taken into custody. After all these formalities, S.K. Thakur (P.W.6) came back to police-station Pachore, the sealed bags of contraband as well as the sample packets were deposited in the ''MalKhana''. Formal F.I.R Ex.P/39 was recorded against the appellants at police-station Pachore. One of the sample packet was sent vide memo Ex.P-36 dated 12/01/2012 to Forensic Science Laboratory, Bhopal. The chemical examiner, vide Ex.P/37 opined about the presence of cannabis in the sample.

After usual investigation, a charge-sheet was laid before the competent Court against the appellants and co-accused Pappulal. A charge for offence under Section 8/20 (b)(ii)(c) of ''The Act'' was framed against each of the appellants; apart this charge for offence under Section 29 of ''The Act'' was framed against co-accused Pappulal. Parasuram was shown to be absconding. The appellants so also co-accused Pappulal abjured the guilt and claimed to be tried. The prosecution, in support of its case, examined as many as nine witnesses including Radheshyam (P.W.1), Chander Singh (P.W.2), both said to be the punch witnesses and S.K. Thakur (P.W.6), who is said to have conducted the search and seizure. Apart this, documents Ex.P/1 to P/42 were also marked as exhibits.

The appellants on being examined under Section 313 of ''The Code'', denied all the incriminating circumstance appearing against them and further submitted that they have been falsely implicated in this case by the police on account of past enmity. Ravidass (D.W.1) and Laxman Naik (D.W.2) were examined as defence witnesses. Laxman Naik (D.W.2) claims to be maternal uncle of Ravi and Ramesh, while Ravidass (D.W.1) claims himself to be co-brother of appellant Ramesh. The learned trial Court, on the basis of evidence adduced by both the parties, vide impugned judgment, acquitted Pappulal, holding that allegations against him have not been proved beyond reasonable doubt. The appellants were convicted and sentenced as stated herein above.

The conviction and sentence recorded against the appellant has been challenged in this appeal on the ground that learned trail Court has not properly appreciated the evidence led by the prosecution. It is submitted that in absence of corroboration by independent evidence, the testimony of police officials was required to be examined carefully, however, overlooking material omissions and contradictions with regard to seizure, search and safe custody of the contraband, so also regarding forensic examination of the sample, the learned trial Court has recorded the findings of conviction, which is based on surmises and conjectures and therefore, liable to be set aside. The appellants have raised following specific points against their conviction: i. Non-compliance of Section 42 of ''The Act''.

ii. Non-compliance of Section 50 of ''The Act''.

iii. The testimony of police officers, which was not corroborated by any independent source, suffered from serious anomalies and contradictions and therefore, not worthy of reliance.

iv. The contraband was not properly seized and was not properly kept in police custody.

Heard the learned counsel for the parties and perused the record.

The question that requires for consideration before this Court is whether the finding of conviction recorded by learned trial Court is sustainable?

As regards Section 42 of ''The Act'', the same is applicable where the search of any building, conveyance or enclosed place, is to be conducted on the basis of information given by any person or on the basis of personal knowledge of the officer, superior in rank of peon, sepoy or constable as stated in Section 42 of ''The Act''. In the instant case, the search of the Indica car was, allegedly, conducted by S.K. Thakur (P.W.6), while he was checking the vehicles during routine patrolling, thus, the search was neither made on the personal knowledge about contraband being taken in the car, nor on the basis of any information received from any person, hence Section 42 of ''The Act'' was not at all applicable, therefore, the question of non-compliance thereof does not arise.

As regards compliance of section 50 of ''the Act'', the same is applicable in case of ''search of a person'' and not in case of search of a vehicle or a bag or purse held by the accused. In this connection, the law laid down by the apex Court in the case of Kalema Tumba vs. State of Maharashtra, (1999) 8 SCC 257, can usefully be referred wherein the apex Court has categorically held that if a person is carrying a bag or some other article with him and contraband article is found in the bag, it cannot be said that the contraband was found from the person of the accused. This view was reiterated by the apex Court in a number of subsequent decisions including in Kanhaiya Lal vs. State of M.P., (2000) 10 SCC 380. The pronouncement of apex Court in Madan Lal vs. State of Himachal Pradesh, (2003) 7 SCC 465, can also be usefully referred in this connection, wherein it has been ordained that Section 50 of ''the Act'' does not extend to search of a vehicle or a container or a bag or premises.

In Madan Lal vs. State of Himanchal Pradesh, 2003 (7) SCC 465, the contraband (''Charas'') was recovered from a Car in which the accused persons were travelling. Hon''ble the apex Court repelling the plea that Section 50 of ''the Act'' was applicable, held as under: "17. A bare reading of Section 50 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. (See Kalema Tumba v. State of Maharashtra and Anr., (JT 1999(8) SC 293) : 1999(4) RCR(Cr.) 575 (SC), The State of Punjab v. Baldev Singh (JT 1999(4) SC 595) : 1999(3) RCR(Cr.) 533 (SC), Gurbax Singh v. State of Haryana, (2001(3) SCC 28) : 2001(1) RCR(Cr.) 702 (SC). 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, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh''s case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance."

It is contended on behalf of the appellants that the evidence of police officers, particularly, of S.K. Thakur (P.W.6) and Santosh Suryawanshi (P.W.8) with regard to alleged search, seizure and keeping the contraband in safe custody suffers from serious infirmities, therefore, the same ought not to have been relied upon by learned trial Judge in absence of corroboration from independent source.

The learned Public Prosecutor has submitted that nothing has been brought on record to indicate that the police officers, involved in search and seizure, were having past enmity with the appellants and, therefore, interested in their false implication. Otherwise, also it is a case of sudden checking, hence question of false implication does not arise, and that minor variations in the testimony of these witnesses cannot be made a ground to throw away the prosecution case.

As regards testimony of a police officer the law is well settled that the same cannot be thrown overboard only on the ground that he is a police officer and that if such testimony, on due appreciation, is found to be trustworthy and free from material contradictions and anomalies, nothing prevents a Court in recording conviction on the basis of such evidence. In this connection, the apex Court in P.P. Beeran v. State of Kerala, AIR 2001 SC 2420, a case under the NDPS Act, has held as under: "Indeed all the 5 prosecution witnesses who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their credit worthiness." placed reliance on the uncorroborated testimony of the Police Inspector in the case of possession of drug of small quantity. ''''

In the instant case, Radheshyam (P.W.1) and Chander Singh (P.W.2), said to be the punch witnesses of alleged search, seizure and arrest, have not supported the prosecution story and have been declared hostile. In absence of corroboration from independent source, the testimony of Sub-Inspector S.K. Thakur (P.W.6) and Constable Santosh Suryawanshi (P.W.8) requires to be examined with care, caution and circumspection. Examined from this angle, we find that the same suffers from serious anomalies and infirmities on a number of points.

Firstly, the testimony of S.K. Thakur (P.W.6), who as per prosecution, conducted search and seizure and the testimony of Constable Santosh Suryawanshi (P.W.8), who, at the relevant time, was allegedly, present on the spot, is at sharp variance as regards source of light at the time of search and seizure. While, S.K. Thakur (P.W.6) in para-16 has deposed that it was dark, therefore, the search and seizure was conducted in the light of lamp post standing on the spot; on the contrary, Constable Santosh Suryawanshi (P.W.8), in para 7 says that a candle stick was brought by constable Narendra and the proceedings of search and seizure was carried out in the candle light.

Secondly, while S.K. Thakur (P.W.6), in para-16, says that weighment machine was battery operated, hence, no electricity was required to operate the same; Constable Santosh Suryawanshi (P.W.8) contrarily has deposed, in para-7, that temporary electricity connection from the house of one Rajput was taken to operate the weighment machine.

Thirdly, S.K. Thakur (P.W.6) has admitted in para-10 that the seizure slip found in the sample bag A1 ? A2 contains description of crime No.12/12, while in para-9 he admits that the crime number was registered in police station at 22.45 hours after completion of all the proceedings of search and seizure, meaning thereby it came to be registered after alleged search and seizure was carried out at 21.40 hours. In these premises, the description of crime number in the seizure slip definitely indicates that the contraband and the samples were not sealed on the spot, and that S.K. Thakur (P.W.6) and Constable Santosh Suryawanshi (P.W.8) have testified in this regard contrary to the factual position.

Fourthly, there is interpolation in the crime number referred in column No.1 of the arrest memo (Ex. P/15 to P/18). It transpires that initially crime No.12/12 was written and thereafter the same was modified to 01,02,03,04/12, though F.I.R was recorded at 10.45 p.m., while the arrest as per Ex.P/15 to P/18 was effected between 10.00 to 10.15 p.m.

In absence of corroboration of independent source, the aforesaid anomalies present in the testimony of S.K. Thakur (P.W.6) and Santosh Suryawanshi (P.W.8) assume significance and create a serious doubt about the purity and integrity of the process of search, seizure and arrest, therefore, the evidence of S.K. Thakur (P.W.6) and Santosh Suryawanshi (P.W.8) cannot be treated as worthy of reliance. Hence, the findings of guilt recorded against the appellants on the basis thereof cannot be sustained because a reasonable doubt is created regarding their complicity in the alleged offence.

In view of the aforesaid, this appeal deserves to be and is accordingly, hereby allowed and the conviction and sentence recorded against the appellants for offence under Sections 8 / 20(b)(ii)(c) of ''The Act'' is hereby set aside. The appellants who are in custody, if not required in any other case, shall forthwith be released from custody. The fine amount, if any, deposited by them shall be refunded to them.

Certified copy as per rules.