Vikram Kumar Manjhi and Others vs State of Chhattisgarh

R.S. Sharma, J.—This appeal is directed against judgment dated 9-3-2004 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances (Amended) Act, 2001 (henceforth ''the Act''), Raipur in Special Criminal Case No. 40/2003. By the impugned judgment, accused/appellant Vikram Kumar Manjhi has been convicted u/s 20(b)(ii)(B) of the Act and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 10,000/-, in default, to further undergo rigorous imprisonment for three months. Case of the prosecution, in brief, is as under:

On 19-6-2003, Sub-Inspector S.N. Akhtar (PW-5) was posted as Station House Officer in G.R.P. Police Station, Raipur. On that date, he received information from Mukhbir that three persons were bringing Ganja in Link Express for sale. He recorded Mukhbir Suchana vide Ex. P-12 and also entered the information in Rojnamcha Sanha (Ex. P-13C). He transmitted the said information to Deputy Superintendent of Police, G.R.P., Raipur vide Ex. P-9 and P-10. He called for witnesses and thereafter proceeded for Platform No. 3 of Railway Station, Raipur where the Link Express had reached. Three persons had stepped down from the train and were going along with a bag (Jhola) towards the over-bridge. All those three persons were caught by surrounding them in which the appellant was one of them. On being enquired, the appellant had told his name. The appellant was informed about his right u/s 50 of the Act vide Ex. P-1 and consent of the appellant regarding search was recorded in Ex. P-2. Thereafter, S.N. Akhtar (PW-5) searched the airbag of the appellant. Ganja, kept in the airbag, was seized from possession of the appellant. The Ganja was weighed at the spot vide Ex. P-5. The Ganja was found to be 6 Kilograms. The Ganja was seized vide Ex. P-6. Sample of the seized Ganja was also prepared separately. The appellant was arrested on the same day vide arrest memo (Ex. P-7). After the seizure and arrest, Investigating Officer Sub-Inspector S.N. Akhtar (PW-5) came back to police station and registered the crime vide First Information Report (Ex. P-16). Complete details of the action taken were prepared u/s 57 of the Act and a copy thereof was sent to Superintendent of Police (Railway) vide Ex. P-11. The sample of the Ganja and the seized Ganja were handed over to Malkhana Moharrir for safe custody in the Malkhana. The samples were sent for examination to Forensic Science Laboratory, Raipur. Report (Ex. P-18) was received therefrom. In Ex. P-18, the test of Ganja was found to be positive.

After completion of the investigation, charge-sheet was filed against the appellant in the Court of Special Judge under the Act, Raipur, who conducted the trial and convicted and sentenced the appellant as mentioned above.

2 Shri Shrawan Chandel, learned counsel for the appellant argued that there was no compliance of provisions of sections 42, 50, 55 and 57 of the Act. He further argued that there is nothing on record to show that the bag was containing Ganja and samples taken from the bag were sealed and specimen impression of the seal was prepared. The seizure from the appellant was not in accordance with law. Possibility of tampering of the seal of the bag sent to the FSL cannot be ruled out. Therefore, the appellant is entitled to be acquitted of the charge framed against him.

3 Smt. Madhunisha Singh, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge do not warrant any interference by this Court.

Having heard rival contentions of the parties, I have perused the record of Special Criminal Case No. 40/2003.

The prosecution examined Bajrang (PW-1), Panchu (PW-2), Head Constable Mahendra Rai (PW-3), Head Constable Ramkumar Manjare (PW-4) and Sub-Inspector S.N. Akhtar (PW-5). The appellant did not examine any witness in his defence.

Bajrang (PW-1) and Panchu (PW-2) were witnesses of recovery, weighing and seizure of the contraband article, but they did not support the case of the prosecution and turned hostile.

Now, I shall examine whether provisions of section 42 of the Act have been substantially complied with by Sub-Inspector S.N. Akhtar (PW-5) or not?

S.N. Akhtar (PW-5) deposed that on 19-6-2003, he was posted as Station House Officer in G.R.P. Police Station Raipur. On that date, he received information from Mukhbir that three persons were bringing Ganja in Link Express for sale. He recorded Mukhbir Suchana vide Ex. P-12 and also entered the information in Rojnamcha Sanha (Ex. P-13C). He transmitted the said information to his superior police officers vide Ex. P-9 and P-10.

Head Constable Mahendra Rai (PW-3) deposed that on 19-6-2003, he was posted as Reader to Deputy Superintendent of Police (Railway), Raipur. On that date, he received Mukhbir Suchana Panchnama, Bina Warrant Talashi Panchnama vide Ex. P-9 and P-10. The evidence of S.N. Akhtar (PW-5) and Mahendra Rai (PW-3) were corroborated by the documents Ex. P-13C and Ex. P-14C.

In Karnail Singh Vs. State of Haryana, the Hon''ble Supreme Court held thus:

In conclusion, what is to be noticed is that Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, , did not require literal compliance with the requirements of sections 42(1) and 42(2) nor did Sajan Abraham Vs. State of Kerala, 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 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).

(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 information 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 with requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with 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 of 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.

Looking to the evidence of Sub-Inspector S.N. Akhtar (PW-5) and Head Constable (Reader) Mahendra Rai (PW-3), it appears that S.N. Akhtar (PW-5), on receiving the secret information, recorded it in Rojnamcha Sanha and prepared Mukhbir Suchana Panchnama separately and communicated the same to his superior authorities, which is corroborated by the documents Ex. P-9, P-10, P-13-C and P-14-C. It is, therefore, clear that S.N. Akhtar (PW-5) complied with the provisions of section 42(2) of the Act.

Now, I shall examine whether provisions of section 50 of the Act have been substantially complied with by the Investigating Officer or not? u/s 50(1) of the Act, the officer, who is to search the accused, is required to inform the person about his right to be searched by a gazetted officer or by a Magistrate. If the person opts to the search before a gazetted officer or a Magistrate, he shall immediately be taken to the said officer or Magistrate. Otherwise, the search can be made by the concerned officer. The requirement of law has been held to be mandatory in nature and non-compliance thereof vitiates the trial.

S.N. Akhtar (PW-5) deposed that before making search, he had given a notice to the appellant before witnesses for search by him or by a gazetted officer or before a nearest Magistrate, The appellant consented to be searched by him. Notice of search is Ex. P-1, which bears his and the appellant''s signatures. Consent of the appellant was recorded in Ex. P-2, which bears signature of the appellant. On making search of the appellant after giving him notice before witnesses, Ganja was found in his possession, which was seized before witnesses.

Vide Ex. P-1, the appellant was informed of his right u/s 50 of the Act. In Ex. P-2, consent of the appellant regarding his search was recorded.

In Nirmal Singh Pehlwan @ Nimma Vs. Inspector, Customs, Customs House, Punjab, , the Hon''ble Supreme Court observed thus:

We have examined the facts of the case in the light of the arguments raised by the learned counsel for the parties and the case law cited. Ext. P.A. is the consent memo under which the appellant had opted to be searched in the presence of a Gazetted Officer. This memo is in the Gurmukhi script and has been read to us and we see that it cannot by any stretch of imagination be said to be informing the appellant of his right to be searched in the presence of a Gazetted Officer or a Magistrate as he was only given the option to be searched before one of the other. In Vijaisingh''s case (supra) the Constitution Bench crystallized the issue before it in para 1 as under:

The short question arising for consideration in this batch of appeals is whether section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") casts a duty on the empowered officer to "inform" the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the said section?

It is therefore apparent that the precise question that was before the Constitution Bench was as to whether a consent memo could be said to be information conveyed to an accused as to his right u/s 50 of the Act. The Constitution Bench clearly stated that a consent memo could not be said to be such information as the provisions of section 50 of the Act were mandatory and strict compliance was called for and any deviation therefrom would vitiate the prosecution. It was further held that it was not necessary that this information should be in a written form but the information had to be conveyed in some form or manner which would depend on the facts of the case. We have accordingly gone through the evidence of PW. 4 Prem Singh. He did not utter a single word as to whether he had informed the appellant of his right and he merely took his option as to whether he would like to be searched before a Gazetted Officer or a Magistrate as noted in Ex. P.A. In the light of the judgment in Vijaisingh''s case (supra) we find that there has been complete non-compliance with the provisions of section 50 of the Act.

I have gone through the evidence of S.N. Akhtar (PW-5). S.N. Akhtar (PW-5) deposed that he informed the appellant about his right that he was entitled to be searched before a gazetted officer or before a Magistrate or before him vide Ex. P-1. The appellant gave his written consent vide Ex. P-2 to be searched by the Investigating Officer himself. From the evidence of S.N. Akhtar (PW-5), it is clearly established that substantial compliance of the provisions of section 50 of the Act was also made by S.N. Akhtar (PW-5).

In Madan Lal and Another Vs. State of Himachal Pradesh, and Megh Singh Vs. State of Punjab, , the Hon''ble Supreme Court observed that a bare reading of section 50 of the Act, 1985 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. 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, vehicle or articles. The position was settled beyond doubt by the Constitution Bench in State of Punjab Vs. Baldev Singh, etc. etc.,

In view of the above settled legal position, section 50 of the Act would not be applicable when search is made in a house or a vehicle or a container or a bag or premises. In the instant case, the search was made of the airbag of the appellant, therefore, section 50 of the Act is not applicable.

Learned counsel appearing for the appellant argued that evidence of S.N. Akhtar (PW-5) is not supported by independent witness. Therefore, on the basis of evidence of S.N. Akhtar (PW-5) conviction of the appellant cannot be based.

In Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, , the Hon''ble Supreme Court observed thus:

In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.

It is not necessary to refer to various decisions on the point. We may, however, state that before more than half a century, in Aher Raja Khima Vs. The State of Saurashtra, Venkatarama Ayyar, J. stated: (AIR p. 230, para 40)

... The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.

In Tahir Vs. State (Delhi), , dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated: (SCC p. 341, para 6)

... Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.

In the instant case, Panch Witnesses Bajrang (PW-1) and Panchu (PW-2) turned hostile and did not support the case of the prosecution, but Sub-Inspector S.N. Akhtar (PW-5) has substantially complied with the provisions of sections 42 and 50 of the Act. Therefore, his evidence is taken for consideration without corroboration by the evidence of Panch Witnesses.

Now, I shall examine whether provisions of sections 55 and 57 of the Act have been complied with?

In Gurbax Singh Vs. State of Haryana, the Hon''ble Supreme Court observed thus:

9......It is true that provisions of sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddemal article was handed over to the witness PW 1 and was kept with him for 10 days. He has also admitted that the muddemal parcels were not sealed by the officer in-charge of the police station as required u/s 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyser received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemical analyser. Further, it is apparent that the IO has not followed the procedure prescribed u/s 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer......

In the instant case, S.N. Akhtar (PW-5) deposed that the seized Ganja was got weighed in presence of witnesses. Weighing Panchnama (Ex. P-5) was prepared which bears his signatures. The weight of Ganja was found to be 6 Kilograms, out of which, two samples of 50-50 Grams were prepared and sealed and remaining Ganja was seized from the appellant vide Ex. P-6 and sealed separately. In the seizure memo (Ex. P-6), the seal impression was affixed. He had arrested the appellant before witnesses. Arrest Memo is Ex. P-7, which bears his signatures. He brought the appellant along with the Ganja to the police station and recorded First Information Report (Ex. P-16), which bears his signatures. He further deposed that the seized article was handed over to Malkhana Moharrir for safe custody.

S.N. Akhtar (PW-5) further deposed that he sent the information to his superior officers regarding seizure, arrest and detailed action taken by him vide Ex. P-11 and P-20 and the same was also recorded in Rojnamcha Sanha No. 1687 (Ex. P-19C). Head Constable Ramkumar Manjare (PW-4) deposed that he was posted as Reader to Superintendent of Police (Railway), Raipur. He received a message, which was sent to Superintendent of Police (Railway), Raipur vide Ex. P-11.

Looking to the evidence of Sub-Inspector S.N. Akhtar (PW-5) and Head Constable (Reader) Ramkumar Manjare (PW-4), it appears that S.N. Akhtar (PW-5), after seizure of the contraband article and arrest of the appellant, sent the detailed action taken report to his superior officers and the same was also recorded in Rojnamcha Sanha No. 1687 (Ex. P-19C). It is, therefore, clear that S.N. Akhtar (PW-5) complied with the provisions of section 57 of the Act.

Sub-Inspector S.N. Akhtar (PW-5) deposed that the seized article was handed over to Malkhana Moharrir for safe custody. He further deposed that the samples were sent for chemical examination to FSL, Raipur through memo of Superintendent of Police. Report (Ex. P-18) was received from the FSL.

Ex. P-17C is a copy of the Malkhana Register. At Serial No. 37/03 dated 19-6-2003, there is an entry of keeping of seized Ganja and samples thereof in the Malkhana, There is a further entry that the samples of Ganja were sent to FSL, Raipur. In Ex. P-18, it is mentioned that two packets, marked as A and B, were received in the FSL, Raipur through Constable No. 379 Ram Kumar, Police Station (Rail) on 23-6-2003 and the seal affixed on those packets were like the specimen seal GRP/RPR.

It is clear from the above evidence that the seized article and samples were sealed by S.N. Akhtar (PW-5) and he affixed seal on those articles. There is no such legal requirement that the sample which is already sealed by the seizing officer and which has been deposited in the Malkhana should again be sealed by the officer-in-charge of the police station.

It is also evident that the sealed samples were sent to the FSL by the Superintendent of Police. According to the report (Ex. P-18), the seal was found to be intact and it was tallied with the specimen seal. Therefore, it cannot be assumed that there was tampering of the seal of the samples. It must be presumed that the samples which were sealed at the time of recovery must have been sent to the FSL.

Therefore, in the instant case, from the above it is apparent that provisions of sections 42, 50, 55 and 57 of the Act are substantially complied with. I find no infirmity in the impugned judgment of conviction and sentence passed by the learned Special Judge. For the foregoing reasons, the appeal is dismissed.