Shushma Soni vs State of Chhattisgarh

Dhirendra Mishra, J.—This criminal appeal is directed against the judgment of conviction and order of sentence dated 17.10.2007 passed in Special Criminal Case No. 13/2006 whereby learned Special Sessions Court constituted under the Narcotic Drugs and Psychotropic Substances Act, 1985 has convicted the appellant u/s 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, hereinafter referred to as the Act) and sentenced her to undergo Rl for 3 years and to pay a fine of Rs. 20,000/-, in default of payment of fine, to further undergo additional Rl for 6 months.

Case of the prosecution, in brief, is that the Station House Officer, Police Station, Ambikapur, Nasar Siddiqui PW3 received secret information on 28.07.2006 at 13.05 hrs that the appellant is selling brown sugar near Jarahagarh Ring Road, Ambikapur. After recording the above information and informing the superior officer and completing other legal formalities, the Station House Officer and the police party along with two witnesses went to the place of incident, apprised the appellant about the nature of information received and her right to be searched in the presence of nearest gazetted officer/Magistrate and after obtaining her consent, affected her personal search and thereafter her residence was also searched, whereupon 106 gms of brown sugar like substance was found in the possession of the appellant from a bag. The seized contraband was duly sealed and the same was handed over to the. in-charge of Malkhana Head Constable Devender Singh for safe custody. The contraband was sent for chemical examination to Forensic Science Laboratory, Raipur and after examination, it was confirmed that the contraband contained Dy-acetylene morphine.

After completing investigation, charge-sheet was filed in the trial Court. Charge u/s 21(b) of the Act was framed against the appellant, who abjured her guilt.

During trial, the prosecution examined 6 witness, thereafter the statement of the accused was recorded, in which she denied the circumstances appearing against her and pleaded innocence and false implication. However, the learned trial Court after hearing the counsel for the parties, convicted and sentenced the appellant as mentioned in part 1 of the judgment.

Learned Counsel for the appellant has questioned the legality, propriety and correctness of the impugned judgment on the following grounds:

(i) independent witnesses of search and seizure have not been examined and conviction is based on the statement of the Investigating Officer PW3 Nasar Siddiqui, Head Constable PW2 Smt. Nirmala Kashyap and witness of Weighment PW6 Ravindra Soni. There is material discrepancy in their statements with respect to the time of the incident and regarding search and seizure.

(ii) There is non-compliance of mandatory provisions of Section 50(4) of the Act as there is no evidence that search was affected in the manner provided by Section 50(4) of the Act.

(iii)The In-charge of Malkhana has not been examined. Malkhana Register has not been produced and the prosecution has failed to prove that the contraband was placed in the safe custody. The police person who took the contraband to FSL, has not been examined. Even there is no evidence that the sample of seal by which the contraband was sealed, was sent to FSL for comparison.

(iv) The contraband was seized from the house, which was not in exclusive possession of the appellant as the same belongs to her mother and the appellant was her guest.

Reliance is placed in the matter of State of Rajasthan Vs. Gurmail Singh, and Dilip and Another Vs. State of M.P.,

On the other had, Learned Counsel for the State has supported the impugned judgment.

Conviction of the appellant is based on the statement of Nasar Siddiqui PW3, who conducted investigation. Head Constable Smt. Nirmala Kashyap PW2, Head Constable Bhupesh Singh PW4 and Ravindra Soni PW6.

Evidence of Nasar Siddiqui PW3 is to the effect that on the date of incident, on receiving the information that the appellant is carrying brown sugar, he recorded the information in the presence of witnesses (Ex. P2), forwarded the information to City Superintendent of Police (Ex. PI and Ex. P5) and proceeded for the place of incident at 13.25 hrs. with staff, issued notice to the appellant u/s 50 of the Act apprising her about her right of search (Ex. P10) and after obtaining her consent, after giving personal search of himself and staff (Ex. P4), got conducted personal search of the appellant as also the house of the appellant by Nirmala Kashyap PW2. On search, one Nylon bag containing a tin box used for depositing coins was recovered and in the said box, 18 pouches of brown sugar like substance, a balance and weights, 7 in number of different denomination, mobile set and calculator were found. Search memo is Ex. PI 2. On preliminary examination, the seized article was identified as narcotic substance vide identification memo of Ex. P13, Ravindra Kumar Saraf was called for weighing the contraband and on Weighment, 106 gms. of brown sugar was fond. Weighment memo is Ex. P16. The contraband was scaled and thereafter memo of specimen seal was also prepared vide Ex. P18. The brown sugar and other articles found on search were seized vide Ex. P19. In the seizure memo also, the impression of seal was affixed. The appellant was arrested on the spot and Dehati Nalishi of Ex. P20 was registered. After returning to the police station, seized articles were handed over to Head Constable Devendra Singh arid the receipt is Ex. P24 and thereafter, the offence was registered by R.P.ShuklaPW5. Information of the complete proceeding was forwarded through Constable Bhupesh Singh (PW4) vide Ex. P3, seized contraband was sent to FSL, Raipur for chemical examination through Superintendent of Police, Sarguja on 30th July, 2006 through Head Constable Victor Lakra and report of FSL is Ex. P32.

In the cross-examination, he has stated that he reached the place of incident at 2.00 P.M. with six police persons and two witnesses. They found the appellant and her children with a lady in front of their house. On the same breath, he has denied the presence of another lady. He has denied the suggestion that independent witnesses Satyendra Jaiswal and Ashok Tiwari were not present in Ambikapur on the date of incident. He has further stated that they (police party) were present on the spot upto 5 to 5.15 A.M; He has also denied that PW2 Nirmala Kashyap did not accompany them to the spot and he has replied that when they received the secret information, she was present in the police station. He has denied the Nirmala Kashyap reached the spot after them. He has admitted the suggestion that the appellant resides with her mother. He has denied that he recorded the statement of witnesses Ashok Tiwari, Satyendra Kumar Jaiswal and Ravindra Saraf, however he has admitted that the charge-sheet mentions their statements in two copies and has stated that it is an inadvertent error.

On the other hand, lady Head Constable Nirmala Kashyap (PW2) who claims to be present on the spot and affected search of the appellant and her house, has stated in her cross-examination that the incident is of 7-00 to 8.00 in the morning. She was in her home. She was called to police station and went with the police party in jeep. She has further stated that it is incorrect to say that the appellant was standing in front of her house. She has stated that she was inside the house, She has also admitted that the appellant is not the resident of Ambikapur but she is from Bihar and her mother had rented the house from where the contraband was seized. She has also admitted that the appellant did not search her.

From close scrutiny of the statement of PW3 Nasar Siddiqui and PW2Head Constable Nirmala Kashyap. it is observed that there is glaring discrepancy with regard to the time of incident. The prosecution document mentions the time of the incident between 1.00 to 2.00 P.M., the 10 has also stated that he reached the spot around 2.00 P.M. whereas PW2 Nirmala Kashyap has mentioned the time of incident as 7.00 to 8.00 in the morning. As per the case of the prosecution, the personal search of the appellant as well as the search of the house was conducted by Nirmala Kashyap vide search memo of Ex. P12, however, the document of Ex. PI2 does not mention the presence of Nirmala Kashyap PW2 nor it bears her signature. It also does not mention that the search was affected by Nirmala Kashyap.

PW6 Ravindra Soni. who has weighed the contraband on being called by the police vide Ex. P 16, has stated that on the date of incident, at about 7.00 P.M., he received the notice from police station and thereafter he had gone to the place of incident where only police persons were present and no other person was present and it was already dark, whereas the 10 has deposed that they were present on the spot only upto 5.00 to 5.15 A.M. The return SanhaofEx. P23 was recorded at 17.35 hrs wherein it is mentioned that after completing the investigation, they have returned to the police station along with seized contraband and the accused and the information is forwarded to the CSP for further information.

Non-examination of the independent witnesses of search and seizure is not fatal to the prosecution, however where such witnesses are not examined in the course of the trial, the evidence of official witnesses may be approached with suspicion and corroboration may be insisted upon Ravindran @ John Vs. The Superintendent of Customs, ). In the instant case, whole investigation has been conducted in the presence of Satyendra Jaiswal and Ashok Tiwari, however the prosecution has not examined the above two witnesses.

After affecting seizure of the contraband and other articles, the same were handed over to the Head Constable Devendra Singh, in-charge Maikhana for safe custody, however, the said Devendra Singh has not been examined nor the Maikhana Register has been produced. The contraband was sent to FSL, Raipur on 30th July, 2007 through Victor Lakra vide Ex. P27, however this document does not mention the name of the Constable Victor Lakra. though the receipt of Ex. P30 given by the FSL mentions that the same was received through Victor Lakra who has not been examined during trail. The Document of Ex. P27 also does not mention that specimen seal was forwarded along with the contraband.

In the matter of State of Rajasthan (supra), it has been held that where Maikhana Register was not produced to prove that it was so kept in the Maikhana till it was sent to the laboratory along with the sample for examination and, therefore, there was no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband and the accused was entitled for acquittal.

In the instant case also, the Maikhana in-charge has not been examined, even Maikhana Register has not been produced. The constable through whom the contraband was sent to FSL for examination, has not been examined, even sending of specimen seal with the contraband has not been established.

So far as the non-compliance of subsection 4 of Section 50 of the Act is concerned, the search memo of Ex. P12 or the seizure memo of Ex. P19 does not mention the presence of lady Head Constable Nirmala Kashyap. The above two documents also do not bear her signature. Subsection 4 of Section 50 lays down that no female shall be searched by anyone excepting a female. Looking to the discrepancy in the statement of 10 and Nirmala Kashyap, the defence of the appellant that search of the appellant was not conducted in accordance with sub-section 4 of Section 50 of the Act appears to be probable and the presence of Head Constable at the time of incident appears to be doubtful, as none of the prosecution document bears her signature.

In the matter of Dilip and another (supra), in para 17 of the judgment, it has been held that even though the provisions of Section 50 of the Act might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the persons of the appellants were also searched, it was obligatory on the part of IO to comply with the said provisions. Referring to the judgment in the matter State of Punjab Vs. Baldev Singh, etc. etc., it has been further observed that Section 50(4) of the Act lays down that no female shall be searched by anyone excepting a female. The empowered officer must, therefore, act in the manner provided in Section 50(4) of the Act read with Section 51 (2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the investigating Officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the female concerned should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provision. Failure to do so may not only affect the credibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity. There is evidence available on record that the appellant is resident of Bihar whereas her mother has taken the house in question on rent where she resides and the appellant had come to her mother. On personal search of the appellant, nothing incriminating was found and; therefore, the prosecution has also failed to prove by credible evidence that the contraband was seized from the appellant''s exclusive possession.

Provisions under the Act are stringent in nature, therefore, strict compliance of the provisions is essential. For the aforesaid analysis. 1 am of the considered opinion that the evidence of PW3 Nasar Siddiqui does not inspire confidence as his statement is not corroborated from the statements of other witnesses.. There is non-compliance of sub-section 4 of Section 50 of the Act and the learned Special Court was not justified in convicting the appellant on the basis of solitary testimony of the Station House Officer, the 10 ignoring the glaring discrepancies and non-compliance of mandatory provision of the Act.

In the result, the appeal preferred by the appellant is allowed. The impugned judgment of conviction and order of sentence u/s 21 (b) of the Act is set aside. She is acquitted of all the charges. She shall be set at liberty forthwith, if not required in any other case.