Raziya vs State of M.P.

I.S. Shrivastava, J.—This appeal has been preferred by the appellant Razia being aggrieved by the judgment dated 21/03/1997 passed by the Court of Shri S. N. Sharma, 2nd Additional Sessions Judge, Neemuch in S.T. No. 140/1995, by which the appellant has been convicted u/s 8/21 of the NDPS Act and sentenced to rigorous imprisonment of ten years along with fine of Rs. 1,00,000/- According to the prosecution story, on 03/11/1995, Shri G.S. Parmar, ASI of police station- Neemuch received an information from the informer that accused Raziya is selling small packets of smack for Rs.20/- each near her house and she may be trapped, hence on this information, he prepared a panchanama about the information and sent constable Rajkumar with a note of Rs.20/- having number 77 V 977850 with his signature and prepared panchanama and sent the information u/s 42 of the NDPS Act to SDO(P), Neemuch through constable Arjun Soni. Thereafter, Shri G.S. Parmar ASI alongwith constable Baban Mishra Krushnaram and lady constable Kiran Sharma and other articles of investigation and independent witnesses proceeded towards the house of the accused and waited for indication of constable Rajkumar. Constable Rajkumar in civil dress went to the house of Raziya and gave a note of Rs.20/- which she received and took out a yellow colour packet from her kurti and took out a small packet and gave it to Rajkumar. At the same time, Rajkumar indicated by putting the hand on his head. Seeing this, accused Raziya ran towards her house, but she was stopped with the help of police force. Thereafter, in presence of the witnesses and lady constable Kiran Sharma, accused Raziya was informed that she has to be searched on the basis of the information of the informer that she is selling smack. Her consent was obtained and she was apprised with her rights about her search before Magistrate or Gazetted officer and accused Raziya consented for her search before the police. Lady constable Kiran Shrama searched accused Raziya and recovered a plastic bag from the hand of Raziya which contained 46 small packets. On opening of each packet, same type of powder was found, which was collected in a single paper and by smelling testing and burning, it was confirmed as smack prepared from opium. On weightment, its weight found to be 5 grams. It was packed with polythene pack in small cloth packet and sealed by seal of Neemuch Police Station. It was seized and seizure memo was prepared. A chit was applied on it. As the quantity of the smack was very low, therefore the sample was not taken out from it. A note of Rs.20/- was recovered from accused Raziya, which was also seized and she was arrested. On return to police station, a report was lodged at crime No. 505/ 1995 and the smack was sent to FSL for its examination and after receipt of the report from FSL and after completion of investigation, challan was filed. After trial, the appellant has been convicted and sentenced as mentioned herein above.

It has been argued by the appellant''s counsel that the appellant has been falsely implicated in this case. The investigation was defective. The independent witnesses did not support the face of seizure. The arrest memo and seizure memo were tampered documents, on which crime No. 505/1995 was mentioned while they were porepared before the registration of the crime No. 505/1995. The sample was deposited in the malkhana without impression of seal and it was not sent immediately to FSL as per rules and there is no explanation for this delay. The packet of smack was doubtful because at the time of the seizure, colour of the powder was yellow while in the FSL, the powder which was sent was found to be of light grey colour. The samples were not prepared on the spot, while there is discrepancy of evidence in between the statement of Shri G.S. Parmar PW-3 and Kiran Sharma PW-9 in this respect. The. number of note which was taken out from the packet in the Court was different and it was different with the number of note of the seizure memo, which was given by police to constable Rajkumar. There was non-compliance of section 55 and 50 of the NDPS Act, hence the appellant was not liable to be convicted, hence the appeal be allowed.

It has been argued by the respondent''s counsel that there was ample evidence before the Trial Court to convict the appellant and he has been rightly convicted, hence the appeal being devoid of merit, be dismissed accordingly.

Considered the arguments and record of the trial Coun perused.

As regard the compliance of section 50 of the NDPS Act according to the prosecution case, at the time of the raid, accused Raziya took out a packet of smack from her Kurti and it was in her hand, when it was seized from her, therefore, it was necessary for the investigating officer that in compliance of section 50 of the NDPS Act, her consent for search should have been obtained and she should have been apprised with her constitutional rights for search before the Magistrate or Gazetted Officer, but no notice was given to her. in Panchanama of proceeding Ex.-P/8, it has been, mentioned that she was apprised that she can be searched before Gazetted Officer or Magistrate and she consented for her search before the lady constable Kiran Sharma. In this way, there is non compliance of section 50 of the NDPS Act. A separate notice must have been given to the appellant apprising her constitutional right to be searched before Magistrate or Gazetted Officer and her consent must have been obtained, but no such proceeding was taken up and consent was obtained. On Panchanama Ex.-P/8, nowhere it is mentioned that consent of accused Raziya was obtained for her search to police. Simply mentioning in panchanama proceedings Ex.-P/8 that her consent was obtained; does not fulfill the mandatory requirement of law. Under this circumstance, she was not liable to be convicted.

As regard the compliance of section 55 of the NDPS Act, Shri G.S. Parmar PW-3 submitted that on return to police station, he registered the FIR Ex.-P/9 and he deposited the seized property in Malkhana. Khushalsingh PW-8 in this respect deposed that he has brought malkhana register of police station, Neemuch in which it has been mentioned that at serial No. 218, on 03/11/1995, a sealed packet of crime No. 505/1995 has been deposited in the malkhana register Ex.-P/11. It was given by Shri G.S. Parmar to him. It was sealed with the seal of police station- Neemuch, hence he deposited it in the Malkhana and thereafter, on 08/11/1995, through constable Shersingh sent this packet to FSL, Indore. In cross-examination, he has admitted that there is no paging on the malkhana register and he has not entered any time of deposit of the sealed packet in this register. From perusal of Ex.-P/11, a copy of Malkhana register, it reveals that three packets were deposited in the malkhana; one was sealed packet containing 46 small packets in a yellow polythene bag, in which 5 grams yellow powder is collected in packet which is 5 grams smack and second packet was containing a note of Rs.20/- and third packet was containing notes of Rs. 40/-. There is no mention that the impression of seal was deposited with these articles. There is another entry of 8/11/1995 that these packets were sent to FSL through constable Shersingh. In these entries, it is not mentioned that impression of seal was also sent with these packets. There is no evidence that the property, which was deposited in the Malkhana was again sealed at the time of deposit in the Malkhana with the seal of in-charge of the police station, hence there was non-compliance of section 55 of the NDPS Act. By non- depositing of impression of seal and non-sending the impression of seal to FSL, therefore, the procedure was defective and it shows non-compliance of mandatory provisions.

From perusal of the seizure memo Ex.-P/5, it reveals that crime No. 505/1995 has been mentioned on it while it was prepared at 15.55 hours on 03/01/1995. From FIR Ex.-P/9, it reveals that it was registered at 16.40 hours after return of Shri G.S. Parmar to police station, therefore, at the time of seizure of the smack, the offence was not registered at Crime No. 505/ 1995, hence the seizure must be at zero crime number. Since the seizure memo Ex.-P/5 bears the crime number, this shows that it is tampered document, either the crime was mentioned on it after registration of the crime or seizure memo was prepared after the registration of crime No. 505/1995. In both these situations, the seizure memo is not reliable.

From arrest memo Ex.-P/7, it reveals that it bears the crime No. 505/ 1995 while it was prepared at 16.10 hours. Previously, crime No. 0/1995 was mentioned on it. Later on, crime No. 505/1995 has been entered in the relevant coloum. This shows that crime was mentioned on it by tampering it or it was prepared later on, because till 16.10 hours, FIR was not registered. This also shows arbitrariness of preparation of the papers.

As regard the incident, the seizure memo Ex.-P/5 was prepared before the independent witnesses Omprakash PW-6 and Khushal PW-

They are also the witnesses of Panchanama Ex.P/3, Ex.-P/4 and Ex.-P/8; they have been declared hostile. According to Omprakash PW-6, he was called at police station by Shri G. S. Parmar, the station officer and he told him that an information, about the sale of smack by a lady has been received, hence he signed on panchanama Ex.-P/3. He does not remember the name of the lady accused. In cross examination he deposed that nothing happened before him. He does not have any information about the accused and he has denied all the prosecution story and said that Ex. -P/3 to Ex. -P/8 bear his signature, but he does not know anything about the incident. He did not go to spot. He has further deposed that at about 8.10 am, he was passing through the police station and on the call of police officer, he signed on it. Kushal PW-10 did not sign before him.

Kushal PW-10, second independent witness of these proceedings, deposed that he does not know the accused. Ex.-P/3 to Ex.-P/8 bear his signatures and he does not know that why he signed on these papers. The police used to call him during preparing challan of Thelewala, hence he signed on these documents at the instance of police. He did not go to Kharikua with police. On contradiction of facts of the prosecution story, he denied each and every steps of the prosecution story. In cross examination, he deposed that he signed on the blank papers. His hotel is situated near the police station and the police used to call him and get his signatures on the papers. Both these witnesses have denied with their police statement Ex.-P/12 & P/13 respectively. In this way, both the independent witnesses did not support the proceedings taken up by the investigating officer for the seizure of smack and panchanama Ex.-P/3 to Ex.-P/8.

Shri G. S. Parmar deposed that on receipt of the information of the informer, he prepared panchanama of this information vide Ex-P/3 and thereafter, he prepared panchanama Ex.P/4 and sent punter constable Rajkumar with a note of Rs.20/- bearing No. 77-V-977850 for purchase of smack from the accused Raziya. Thereafter, he sent the information of this to SDO (P), Neemuch by letter Ex,.-P/1. Thereafter, with police force head constable Baban Mishra, constable Krushnaram and lady constable, Kiran Sharma and the independent witnesses proceeded to Kharikua, where they sat and waited for indication of the punter. On indication by the punter, they rushed towards the accused Raziya. Seeing the police, accused Raziya tried to run, but she was caught and thereafter, she was apprised with the information of the informer and after her consent for search, she was searched and in search, yellow colour polythene bag was recovered by lady constable Kiran Shrma from her, which contained 46 small packets. On opening, yellow colour powder was found in it, which was collected on a paper. It was tested by the independent witnesses and the police force by testing and burning found it to be smack from opium. Whole of the powder was found to be 5 grams on weightment and it was sealed on the spot. As he was not having his own seal, hence a chit of paper was pasted on it and his own signature and the signature of panch witnesses and the accused were taken on it. On search of the accused, Rs.60/- was found including the note of Rs.20/- of the punter Rajkumar, which was sealed with the seal of the police station, Neemuch. Seizure memo Ex.P/5 was prepared and Ex.-P/6, a proforma of narcotic drugs was prepared and the signature of the witnesses and the accused was obtained on it and the accused was arrested vide arrest memo Ex.P/ 7 and thereafter, panchanama of whole of the proceedings Ex.-P/ 8 was prepared. The impression of the seal was impressed on these panchanamas and the case was registered and the police station officer Shri Jatav was informed. Thereafter, FIR Ex.P/9 was registered which bears his signatures and the signature of station house officer Shri Jatav. The seized property was deposited in the malkhana and report u/s 57 of the NDPS Act Ex.-P/2 was sent to SDO(P).

At the time of evidence in the court, packet-k containing the punter''s note was opened and number of the note was 77-V-966850 which bear signature of Shri G.S. Parmar. In this respect, it has been argued by the appellant''s counsel that this note was different from note, which was given to the punter Rajkumar and seized by seizure memo Ex.-P/5.

Considered the arguments. Number of the note which was taken out from the packet in the Court was 77-V-966850 and the number of the note which was seized on the spot was 77-V-977850; the same number was mentioned in punter panchanama Ex.-P/4. This shows that the note which was produced in the court, was not the same, but it was different note having different number. This situation goes in favour of the appellant and it was proved that the note bearing number 77/V-977850 which was sent through punter Rajkumar was not seized from the appellant and was not sealed in packet Article- K.

As regard the sample, it has been argued by the appellant''s counsel that no sample was prepared on the spot by G.S. Parmar ASI PW-3 and whole of the quantity of the smack was sent to FSL for examination, but constable Kiran Sharma PW-9 deposed that two samples were taken out on the spot. Due this discrepancy, whole of the prosecution story is unreliable.

Considered the arguments. Shri G.S. Parmar PW-3 has not deposed that any sample was prepared on the spot, but whole of the quantity was sealed in the packet but from the statement of Kiran Sharma PW-9, it reveals that two samples were prepared from the seized smack, but she could not tell, what was its weight. Again she has replied that after the weightment, sample was prepared. About the weightment, she said that only smack was weighted without paper, while according to G.S. Parmar, weight of the smack with paper was 5 grams and according to panchanama of proceedings Ex.-P/8, no sample was taken out and weight of the smack was 5 grams. Therefore, the statement of Kiran Sharma PW-9 is not reliable to support the prosecution story.

It has also been argued by the appellant''s counsel that the powder which was recovered from the appellant was of light yellow colour while colour of the powder was light grey as per FSL report Ex.-P/14. Both these colours are different and hence it is doubtful that the powder which was seized on the spot was sent for anlysis.

Considered the arguments. There is lot of difference in the powder of light yellow colour and light grey colour. There is no, explanation that how this colour was different, hence it creates doubt that whether the powder which was seized as smack was the same which was sent for examination for FSL. Secondly, there is No. explanation that as the powder was deposited in the malkhana on 03/11/1995, then why it was sent on 08/11/1995, why it was not sent immediately. No explanation for this delay has been given by the prosecution. Hence under these circumstances, tampering of sample cannot be ruled out.

Therefore, on the basis of the above discussions, I conclude that the seizure memo was not reliable; it was tampered document. There was non-compliance of section 50 & 55 of the NDPS Act. The independent witnesses did not support the prosecution case. The impression of the seal was not deposited in the malkhana. Sample was sent to FSL with inordinate delay and for which, no explanation was given. There was difference of colour of the powder, which was seized and sent for FSL, hence it was doubtful that the same powder was sent for analysis. Number of the note which was given to punter Rajkumar, was not the same which was taken out from the packet in the Court. There was difference of statements in between the members of the raid party about preparation of the sample. According to Kiran Sharma, PW-9, two samples were prepared, but according to G.S. Sharma PW-3, no sample was prepared. Therefore, on the basis of the evidence produced before the Trial Court, the appellant was not liable to be convicted as held in the case of Ritesh Chakarvarti Vs. State of M.P ACR 2 (2006 [362] , Valsala Vs. State of Kerala, and Jitendra and Another Vs. State of M.P., . Hence, this appeal deserves to be allowed. Therefore, on the basis of the discussions, this appeal is allowed and the appellant Raziya is acquitted from the charges u/s 8/21 of the NDPS Act. The appellant is on bail; her bail bonds are discharged. The fine, if deposited be returned to her.