Imran Pathan Abdul Hussain Pathan V. Union of India

CR.A/1213/2014

AI Insights

The case involves multiple appellants convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985, for their roles in trafficking charas (a form of cannabis) from Jammu & Kashmir to Gujarat. The appeals challenged the trial court's judgment, which found the appellants guilty based on evidence including confessional statements and seizure of contraband. The High Court examined procedural compliance with the NDPS Act, particularly Sections 42 and 50, and the handling of evidence, including the sealing and testing of seized substances. The court upheld the convictions, emphasizing the reliability of the prosecution's evidence and the voluntary nature of the confessions made by the appellants.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 702224 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 15-07-2019
• Assessment Year: misc
• Other Referred Cases: Niraj Devnarayan Shukla and others vs. State of Gujarat, Ali Hussen Bakarali Saiyed and others vs. The State of Gujarat and anr., State of Punjab vs. Baldev Singh, Vijaysinh Chandubha Jadeja vs. State of Gujarat, Sajan Abraham vs. State of Kerala, Rajendra @ Ramjanam Patel vs. State of Madhya Pradesh, Gulam Mohammad Malik vs. State of Gujarat, State of Punjab vs. Makhan Chand, Abdul Salim Abdul Munaf Shaikh vs. Narcotics Control Bureau, Kanaiyalal vs. Union of India, Khet Singh vs. Union of India, Rajeshwarsing Natthusing vs. State of Gujarat, Dashrathsinh Sampatsinh Rajput vs. State of Gujarat, Myla Venkateswarlu vs. State of Andhra Pradesh
• Laws Referred To: Narcotic Drugs and Psychotropic Substance Act, 1985
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: KARTIK PANDYA; PUBLIC PROSECUTOR
• Assessee Lawyers: SADHANA SAGAR; RICHA SHAH
• Keywords: Charas; Conspiracy; Legal Procedure; Narcotic Drugs; Non compliance; Search and seizure
• Section: 50; 57; 29; 42(1); 20(b)(ii)(C); 8(c)

Judgement Text

"R/CR.A/1213/2014 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL APPEAL NO. 1213 of 2014 With R/CRIMINAL APPEAL NO. 849 of 2015 FOR APPROVAL AND SIGNATURE: HONOURABLE MS JUSTICE SONIA GOKANI ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? NO ========================================================== IMRAN PATHAN ABDUL HUSSAIN PATHAN Versus UNION OF INDIA & 1 other(s) ========================================================== Appearance: MS SADHANA SAGAR(1091) for the Appellant(s) No. 1 RICHA SHAH(7541) for the Appellant(s) No. 1 MR KARTIK V PANDYA(2435) for the Opponent(s)/Respondent(s) No. 1 PUBLIC PROSECUTOR(2) for the Opponent(s)/Respondent(s) No. 2 ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 15/07/2019 ORAL JUDGMENT 1. These appeals arise from the judgment and order dated 29.01.2014 passed in Sessions Case No.180 of 2011 by the learned Additional City Page 1 of 129 R/CR.A/1213/2014 JUDGMENT Sessions Judge, Court No.11, Ahmedabad, whereby the trial Court has convicted all the appellants for the offences punishable under Section 8 (c) read with Sections 20(b)(ii)(C) and Section 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 ('the N.D.P.S.Act' herinafter) and further directed to undergo ten year of rigorous imprisonment. 2. At the outset, it is necessary to be mentioned that Criminal Appeal no.849 of 2015 has been preferred by three convicts, namely (1) Mustak Ahmad s/o Mahemud Mohammad Sadik, (2) Hilal s/o Mohammad Yusuf and (3) Abdulkaiyum Shaikh s/o Shabbirbhai Kaiyum. 3. Convict Mustak Ahmad while in the judicial custody was granted temporary bail on dated 12.08.2016 for the purpose of reconstruction of house, which had collapsed during flood in the year 2014 in the State of Jammu & Kashmir, by this Court and he has chosen not to return and is absconding since then and therefore, his appeal Page 2 of 129 R/CR.A/1213/2014 JUDGMENT tagged with the rest, when came up for hearing, in wake of the decision of this Court in case of Niraj Devnarayan Shukla and others vs. State of Gujarat, this Court has chosen to dismiss the same for now, reserving his right to appeal if in future he so chooses. The ratio laid down in this provides that when the appellant is not present and has been absconding after the court permitted him the temporary bail, his appeal deserves to be dismissed for want of prosecution and non­ bailable warrant is required to be issued against him, which shall be at an appropriate stage directed. 3.1 It would be profitable to refer to the observations made by this Court in the case of Niraj Devnarayan Shukla and others (supra) wherein, this Court held and observed as under: “16. In view of the ratio laid down by the Apex Court, we are of the opinion that the High Court while dealing with a conviction appeal wherein convict/ advocate is/are not available, following procedure is required to be considered at the time of final hearing: Page 3 of 129 R/CR.A/1213/2014 JUDGMENT (i) If the Advocate appearing for the appellant ­ convict is present and is ready to proceed with the appeal, the Court has to decide the same on merits and reasoned judgement is to be delivered even if the convict is absconding. It is needless to say that the convict should always be subjected to consequences of his abscondance. (ii) If the convict is absconding and his advocate is absent, and if the convict has jumped the bail/ temporary bail granted by the High Court, High Court itself, shall take recourse provided under the provisions of Criminal Procedure Code to secure the presence of absconding convict and can issue non­bailable warrant, passing orders of attachment of his property declaring him proclaimed offender, etc. under sections 82, 83, 84 and 85 of the Code of Criminal Procedure. After exhausting all possible effort if the convict could not be traced out and if the High Court is satisfied and is of the opinion that the convict is recalcitrant and has shown total disrespect to the orders passed by the High Court and has jumped the bail/ temporary bail, the High Court can exercise its inherent power u/s.482 of the Code and can dismiss the appeal. (iii) If the convict was released pursuant to orders passed by the concerned Department of the State/ Jail authority (like furlough leave, etc.) and is not available at the time of hearing of the appeal, the jail authority shall submit a detailed report to the High Court about the steps undertaken by the concerned Department / Jail authority to secure the presence of the absconding convict. Page 4 of 129 R/CR.A/1213/2014 JUDGMENT If the High Court is satisfied with the said report and comes to the conclusion that the convict is recalcitrant and has shown disrespect to the judicial system, his appeal can be dismissed. (iv) If the appeal is dismissed on the ground of non­availability of convict and subsequently if the convict surrenders or is arrested, he may file application for restoration of his appeal for hearing the same on merits. 17. It is needless to say that if the Bench comes across a criminal appeal, wherein it finds that the case of absconding convict does not fall in any of the above referred contingencies, it can exercise its inherent powers provided under section 482 of the Code, which would entitle it to make such orders, as may be necessary to secure the ends of justice.“ 4. Criminal Appeal No.1213 of 2014 has been preferred by convict (original accused No.3) Imran Abdulhusen Pathan, who also has sought quashment of judgment and order of conviction and sentence. FACTUAL MATRIX: 5. Brief facts of the present appeal in the capsulized form are as follows: 5.1 One intelligence officer, Mr.H.K.Mukharjee received specific secret information on Page 5 of 129 R/CR.A/1213/2014 JUDGMENT 01.11.2010 that Gul Mohammad Jargaar @ Gul Jamadar residence of Bijbehara, Jammu & Kashmir had dispatched a consignment of 12 kg charas to his trusted person, namely Mustak and Hilaal Ganie in Car No.DL 6 CA 7754 and the same was to be delivered to one Shahnavazkhan of Shahpur, Ahmedabad and Hafiz of Ankleshwar. These persons sent their associates namely Abdul Kayyum and another person to Abu Road, who were to reach at around 20:00 hours at Naroda Patiya in the car and as per their arrangement they were to get down with 5 kg of charas and Mustak would proceed to Ankleshwar for delivering 7 Kg of charas to Hafiz of Ankleshwar. 5.2 This information has been submitted to the Superintendent of Narcotics Control Bureau, Ahmedabad and thereafter, on the basis of this information, the Superintendent intimated to form a team for further action. Two independent witnesses were called as panch witnesses and thereafter, the raiding team along with two Page 6 of 129 R/CR.A/1213/2014 JUDGMENT panchas reached at the spot and the said car bearing registration No. DL 6 CA 7754 was intercepted. When the search was made of the car, the contraband article charas was found. Necessary procedures prescribed under the law had been followed by the raiding officers for search and seizure. As per the case of prosecution, an opportunity was given to the accused, if they so desired, to be searched in presence of any other Government Gazetted Officer. However, they chose not to avail the said offer. Eventually, the search and seizure took place and eight packets were tested by the Drug Testing Kit, which tested positive for contraband article charas. The process of sealing and sampling had also been undertaken. 5.3 The complaint was filed, which was further investigated and eventually, the chargesheet was filed and the case was committed to the Court of City Sessions, Ahmedabad as N.D.P.S. Case No.180 of 2011. Page 7 of 129 R/CR.A/1213/2014 JUDGMENT 5.4 The charges came to be framed vide Exhibit 5 for the offences punishable under Section 8(c) read with Section 20(b) and Section 8(c) read with Section 29 of the N.D.P.S. Act against all the appellants. 5.5 The prosecution to substantiate these charges, examined six witnesses and also produced the documentary evidences, the detail of such oral as well as documentary evidences are as follow: ORAL EVIDENCE Sr. No. NAME P.W. No. EXH. 1 Chandrakantbhai Parsottamdash Parmar 1 14 2 Kamleshbhai Ramdas Parate 2 21 3 Dharamvir Ganeshilaal Yadav 3 42 4 Prafulsinh Navalsinh Sarvaiya 4 54 5 Hemantkumar Santoshkumar Mukharjee 5 60 6 Nishant Shrivastav Salilkumar 6 86 DOCUMENTARY EVIDENCE Sr.No. Description EXH. 1 Seizure Panchnama 17 2 Mustak Ahmad's Summons u/s 67 of the 24 Page 8 of 129 R/CR.A/1213/2014 JUDGMENT N.D.P.S.Act. 3 Statement of Mustak Ahmad 25 4 Arrest Memo of Mustak Ahmad 26 5 Report u/s 57 of the N.D.P.S.Act 27 6 Receipt of telegram 28 7 Forwarding letter to C.R.C.L., New Delhi 29 8 Imran Pathan Abdul Husen's summons u/s 67 of the N.D.P.S.Act 43 9 Statement of Imran Pathan Abdul Husen 44 10 Arrest Memo of Imran Pathan Abdul Husen 45 11 Report u/s 57 of the Act 46 12 Letter of Written Information 55 13 Godown Receipt 56 14 Letter sent to Ahmedabad Zonal Unit 57 15 Report u/s 57 of the N.D.P.S.Act 60 16 Summons u/s 67 of the N.D.P.S. Act of Abdul Kaiyum Shaikh 62 17 Statement of Abdul Kaiyum Shaikh 63 18 Arrest Memo of Abdul Kaiyum Shaikh 64 19 Report u/s 57 of the N.D.P.S.Act 65 20 Summons of Shahnavazkhan u/s 67 of the N.D.P.S. Act with receipt 66 21 Summons of Irfan Ahmed u/s 67 of the N.D.P.S.Act 67 22 Letter of Jammu Zonal Unit 68 23 Summons of Shahnavazkhan u/s 67 of the N.D.P.S.Act 69 24 Letter of Jammu Zonal Unit 70 25 Letter sent to C.R.C.L., New Delhi 71 26 Summons of Savita Arjun Bhil u/s 67 of the N.D.P.S.Act 72 Page 9 of 129 R/CR.A/1213/2014 JUDGMENT 27 Letter of Delhi Zonal Unit 73 28 Letter sent to Zonal Unit, New Delhi 74 29 Letter sent to Jammu Zonal Unit 75 30 Summons of Shahnavaz u/s 67 of the N.d.P.S.Act 76 31 Letter written to Post Master, ShahAalam 77 32 Letter of Senior Superintendent, City Police, Ahmedabad 78 33 Letter of Jammu Zonal Unit 79 34 Letter to Tata Indicom 80 35 Letter written to Bharti Airtel Limited, Jammu & Kashmir 81 36 Letter of Tata Tels. Service 82 37 Letter received from Bharti Airtel Limited, Jammu & Kashmir 83 38 Copy of the godown register 85 39 Summons of Hilal Gani u/s 67 of the N.D.P.S.Act 87 40 Statement of Hilal Gani 88 41 Arrest Memo of Hilal Gani 89 RECORDANCE OF FURTHER STATEMENTS: 5.6 After the prosecution tendered a closing pursis, the further statement of accused­ appellants had been recorded under Section 313 of the Code of Criminal Procedure, where all the appellants­accused denied the entire set of evidence and urged that they have been falsely implicated. Page 10 of 129 R/CR.A/1213/2014 JUDGMENT (4) The prosecution as well as the accused­ appellants, who were held guilty after hearing the learned advocate on both the sides at length and the trial Court convicted all the three appellants as mentioned herein­ above and hence, these appeals. SUBMISSIONS FROM THE APPELLANTS: (5) This Court has heard the learned advocate, Ms.Sadhna Sagar with learned advocate, Ms.Dipika Bajpayi for the appellants and learned standing counsel, Mr.Kartik Pandya for Narcotic Control Bureau ('the N.C.B.' hereinafter). (6) According to the learned advocate, Ms.Sadhna Sagar, although there was a prior information, neither the Gazetted Officer nor the Magistrate was kept present at the time of search and seizure process. It is also further urged that sealing is to be done as far as possible at the place of incident and though there were sufficient space and light, sealing did not take place at the place of seizure, everything was instead done at the office of the N.C.B. Page 11 of 129 R/CR.A/1213/2014 JUDGMENT 8.1 She has further urged that there has been a non­compliance of the standing order of N.C.B., the officer concerned of N.C.B. who was though fully equipped with all materials for raid, search, seizure, testing, sealing, etc. and yet, the entire process of panchnama, etc. had not been done at the place of search and instead had been done at the place of N.C.B. For this purpose also, she has relied on the decision of Ali Hussen Bakarali Saiyed and others vs. The State of Gujarat and anr. passed in Criminal Appeal No.1372 of 2005 by the Division Bench of this Court. 8.2 According to her, it is wrong to explain that since the seizure was carried out on the highway, it was needed to be shifted. She urged that the information did not reveal the cognizable offence. It was a planted case and therefore, the N.C.B. did not carry out the proceedings at the place of seizure. She has Page 12 of 129 R/CR.A/1213/2014 JUDGMENT further urged that on 01.12.2010, the incident is said to have happened and yet, muddamaal had not been deposited even after six months till 25.04.2011 and it was on 26.07.2011 that the same had been deposited. 8.3 Moreover, no officer was given any authority for recordance of statement under Section 67 of the N.D.P.S.Act and the ownership of the vehicle also has not been proved. She has emphasized that from the time when the officer received secret information and the purported raid was carried out, there was a difference of three hours and that was sufficient time to call the Government Gazetted Officer or keep the Executive Magistrate present. There is a very weak foundation of sealing, since the same that was not done at the place of seizure. She has further urged that no memo had been prepared and after the sunset, the procedure had been done which is impermissible. 8.4 She has submitted that there has been a non­ compliance of Section 42 of the N.D.P.S.Act. As Page 13 of 129 R/CR.A/1213/2014 JUDGMENT per the deposition of the witness, the procedure for search and seizure was to be carried out. There was no warrant obtained to search beyond the sunset and before the sunrise and no resolution mentioning the reason to conduct the raid between the sunset and sunrise was prepared, it is a breach of mandatory provision and is fatal to the case of prosecution. It is further her case that Section 42 of the N.D.P.S.Act is applicable to the case of prosecution, which is mandatory for the officer concerned, who received the information to reduce the same into writing and send a copy to his immediate officer/ supervisor within seventy­two hours. 8.5 Heavy Reliance is placed on the decision of Criminal Appeal No.1372 of 2005 in case of Ali Hussen Bakarali Saiyed (supra) to substantiate her overall version. 8.6 Non­compliance of Section 50 of the N.D.P.S.Act has also been emphasized. According Page 14 of 129 R/CR.A/1213/2014 JUDGMENT to her, the written notice had not been given to the appellants and except the oral version and the panchnama in writing which gave information to the appellants of their rights to be searched in presence of Government Gazetted officer or Magistrate is missing. She also urged that there was no (Government) Gazetted Officer in the raiding party. 8.7 With regard to the non­compliance of Section 55 of the N.D.P.S.Act, it is urged that the officer in­charge of the concerned police station needs to take charge and keep the seized articles in safe custody and to fix the seal on such articles. Looking to the deposition of the raiding officer, the movement of the articles has not been registered in the godown register. It is, therefore, the question whether the articles were kept in a safe custody or not. It is further urged that Section 29 of the N.D.P.S. Act is not attracted since contraband article seized was allegedly found from the Page 15 of 129 R/CR.A/1213/2014 JUDGMENT dickie of the vehicle and not from the accused and the ownership of the vehicle has not been proved. It is impossible to connect the appellants with the crime in question. She has further urged that there is a strong possibility of tampering with the seal, since colour of the contraband articles seized, according to the deposition of the p.w.­1, was red and brown or black and brown. However, the report of Central Revenues Control Laboratory ('the C.R.C.L.” hereinafter) indicates that the colour of the article to be greenish brown. The description of the seal is not written in the panchnama and there is no entry in the register of carrying the seal nor is the evidence for handing over of the seal. 8.8 She has further argued that the statement under Section 67 of the N.D.P.S. Act was not recorded on the part of the N.C.B. office, no panchnama was made of the arrest of the accused and crime registeration number was not was given Page 16 of 129 R/CR.A/1213/2014 JUDGMENT to the complaint. Accused were not medically examined when produced before the court concerned, therefore, the possibility of physical force and injuries to obtain their statements cannot be ruled out and the statements given under Section 67 of the N.D.P.S. Act cannot be said to be genuine. 8.9 She also further argued that there is no logbook on record for the use of the government vehicle and no registration for use of the same in the panchnama of raid is produced. There are no independent witnesses to support the case of prosecution. She has, therefore, relied upon the decisions of 2006 12 SCC 321, 2016 11 SCC 687 and 2008(16) SCC 417 to urge that the case of prosecution is doubtful from the beginning. In case of each of the accused, she has detailed as to how the evidence adduced is not inspiring confidence. SUBMISSIONS OF PROSECUTION: Page 17 of 129 R/CR.A/1213/2014 JUDGMENT 9. Per contra, learned standing counsel, Mr.Kartik Pandya appearing for N.C.B. has urged that the entire evidence of the witness confirmed the validity of investigation and possession of contraband material by the appellants. According to him, p.w.­2 Kamleshbhai Ramdas Parate, who is the intelligence officer of the department had perfectly narrated the details of investigation and recovery of muddamaal from the appellants­ accused. He was called by his superior officer and instructed to form a team and directed to act in accordance with law. Thereafter, along with other officials and panchas he reached at the spot. He had stated that at about 07:30 p.m., one car bearing registration No.DL 6 CA 7754 was intercepted, which was driven by the original accused No.3 and the accused No.4 was sitting at the adjacent and accused No.1 along with the accused No.2 was sitting back side. From the secret pocket, on search of a car, they found eight packets on opening such pakets and the test was carried out from the testing kit and it was Page 18 of 129 R/CR.A/1213/2014 JUDGMENT confirmed to be charas. It was decided to move at their office with the consent of accused­ appellants. Thereafter, an opportunity was given to the appellants under Section 50 of the N.D.P.S.Act for the search and seizure in presence of the Government Gazetted officer or Magistrate, however, they denied the same and therefore, all the accused occupying the car had been searched and driving licence, receipt of toll tax, cash, mobile phones, etc. had been found. The panchanama was carried out on 01.11.2010 at about 04:40 p.m. and completed on 02.11.2010 at 01 O'clock. 10. The summons were issued under Section 67 of the N.D.P.S.Act to Mustak and his signature has been taken (Exhibit 24) and statement came to be recorded under Section 67 of the N.D.P.S.Act where he explained the provision of Section 67 of the N.D.P.S.Act. However, he voluntarily gave the statement, which was exhibited (Exhibit­25). His arrest was effected thereafter and intimation was Page 19 of 129 R/CR.A/1213/2014 JUDGMENT given to the relatives. He deposited the muddamaal to the godown in­charge and submitted the report under Section 57 of the N.D.P.S.Act to the superior officer. Forwarding letter was sent to the C.R.C.L., New Delhi by ensured post. Any identified thing which was applied to the sample and investigation was then transferred to Mr.Mukharjee. It is urged that six witnesses were cross examined at length and he has stood his ground. It is further urged that Deputation Intelligence Officer­p.w.3 Mr.Dharamvir Ganeshilaal Yadav of N.C.B. was a part of a raiding team, who has also narrated the details. He had issued summons under Section 67 of the N.D.P.S. Act to accused­Imran Pathan. He was explained the provision of Section 67 of the N.D.P.S.Act and he had chosen to give the statement, which was recorded and eventually, he was arrested. 10.1. With regard to p.w.­4 Mr.Prafulsinh Navalsinh Sarvaiya, superintendent, p.w.­5 Page 20 of 129 R/CR.A/1213/2014 JUDGMENT Mr.Hemantkumar Santoshkumar Mukharjee had given written indulgence to him. He made a noting of the same and informed the intelligence officer to form a team. Mr.Kamlesh Parate handed over the seized muddamaal for depositing the same in the godown and for which receipt had been issued by the officer. He has also received the report under Section 57 of the N.D.P.S. Act from Mr.Mukharjee, Mr.Nishant Shrivastava and Mr.Dharamvir Yadav. It is urged that Mr.Mukharjee (p.w.­5) served as an investigating officer and he also gave the detailed evidence as to how he was a part of the team and the worked he carried out. According to him, he also received the report from the C.R.C.L. on 13.12.2010 regarding the ownership of the vehicle. The summons had been issued to the concerned person and he also collected the call details of all the accused, who were in contact with each other before the offence committed. The original godown register was also produced. P.w.6 Mr.Nishan Shrivastav, who was the part of the raiding team had also Page 21 of 129 R/CR.A/1213/2014 JUDGMENT issued summons to the accused and recorded the statement of accused No.2 under Section 67 of the N.D.P.S. Act. 10.2 It is urged by the learned standing counsel that the depositions of prosecution witnesses inspire confidence and there is no reason for the court to discard the test report. The chemical analysis also gave the positive result and all the four accused were travelling in the same car, which was not a public vehicle. Recovery of the contraband article according to him, from the possession of the appellants not only confirms their involvement, but the statements under Section 67 of the N.D.P.S. Act also further indicates the stand of the prosecution. It is his say that the appellants have been rightly convicted by the trial court and no interference is desirable. Though the accused were informed of their rights under Section 50 of the N.D.P.S Act they have chosen not to exercise the right. What has been seized Page 22 of 129 R/CR.A/1213/2014 JUDGMENT from them is a huge quantity of charas which is the offence of serious nature. 11. This Court notices from the judgment and order passed by the trial Court in Sessions Case No.180 of 2011, the court has taken into consideration entire evidences of six witnesses and the detailed cross examination of theirs. It also has in detail considered the submissions of both the sides and applying the law on the subject held that when the C.R.C.L. has already weighed the contraband article at 12.708 kg and as per the report, there is a positive test of charas. Considering the commercial quantity, exhibiting the version of the prosecution by giving the detailed reason, the Court held in favour of the prosecution. APPRECIATION OF EVIDENCE (ORAL & DOCUMENTARY) 12.Examining at the outset, the oral evidence adduced by the prosecution in the form of six witnesses and the documentary evidences on Page 23 of 129 R/CR.A/1213/2014 JUDGMENT record, p.w.1 is Shri Chandrakant Purusottambhai Parmar, who is working as a clerk in the Mamlatdar's Office at Daskroi. While attending to his job on 01.11.2010, he was called by the Mamlatdar to go to the N.C.B. Office with Mr.Keyur and they had gone to N.C.B. office. This witness with other panchas had met the N.C.B. officer Mr.Kamlesh Parate, who shared the secret information with them and he was introduced to the rest of the staff. Physical search was carried out of the vehicle and only search kit, testing kit, etc. were found, no objectionable article had been found in the vehicle. Both the vehicles Maruti Gypsy and Maruti Van had been searched, nothing objectionable was found from the vehicle in which they travelled for the purpose of search. They had reached Naroda Patiya at around 06 O'clock and they were asked to keep a vigil. When the vehicle came from towards Abu Road, the same was intercepted. Two persons were sitting in front and two were siting on the back seats. The driver was Kayyum, the person sitting Page 24 of 129 R/CR.A/1213/2014 JUDGMENT with him was Imran Pathan (Accused of Criminal Appeal No.1213 of 2014), the others were named as Mustak and Hilal. The officers had introduced themselves and they were also told that the vehicle is required to be searched and whether they needed to do the same in the presence of any Government Gazetted Officer or the Magistrate, to which, they had denied and agreed to the same being carried out by the panchas and the staff and the officer of NCB. Accordingly, search was carried out and they found driving licence, railway ticket, mobile phones, election card, etc. Kayyum had revealed a secret box in the vehicle where contraband articles were found after the dickie was opened, and, when the spare wheel was taken out, there was a secret cavity which had eight packets of article with brown colour. One of the packets when opened, the reddish brown coloured article was found and tested by Shri Kamlesh Parate and the same was declared to be the charas. The packet was closed and mark­A was given and others were also given Page 25 of 129 R/CR.A/1213/2014 JUDGMENT mark. 12.1 Since it was getting dark and there was a low light, according to this witness, they chose to do the rest of the procedure at the N.C.B. office. All the four accused agreed to the same and accordingly, they all left for N.C.B office at around 08:30. Eight packets were separately made and total quantity of contraband article was 12.708 kg. After the packets were removed, the net weight of contraband article was 11.915 kg They were reddish black coloured and round shaped article. Two samples which were drawn were kept in two envelopes and numbered as A­1 and A­2. A seal was applied after the adhesive tape. Accordingly, all the samples were drawn from B to G of 25 grams each and were sealed identically. Both the panchas signed on the packets and Mr.Parate and Mr.Panchal and all the four persons also had singed and panchnama was accordingly drawn. 12.2 In the cross examination, he admitted that Page 26 of 129 R/CR.A/1213/2014 JUDGMENT no preliminary panchnama was carried out. The sampling procedure had been carried out at the office of N.C.B. and the sealing procedure also was carried out there. He agreed that all the contraband articles, which were lying in the office were taken out to prepare the samples. He agreed that the area where they were waiting for the vehicle was an industrial zone. The muddamaal was found from the secret cavity where generally the spare wheel is kept. He agreed that this detail is not revealed in the panchnama. He has been repeatedly questioned with regard to the test conducted of the Narcotics Substance and he answered that the same was done in his presence. When the car halted it was around 07:15 p.m. and the sun had already set. He had in the lengthy cross examination, admitted that after they went to the N.C.B. office the seals were applied by Mr.Parate in his presence. There was a use of stapler as well as adhesive tape. He denied the suggestion that at the N.C.B. office, he had threatened to put his signature without the due Page 27 of 129 R/CR.A/1213/2014 JUDGMENT procedure having been followed and therefore, out of his apprehension of being wrongly roped into the criminal proceedings, he has supported the prosecution version. 13. The version of this witness is quite clear and he has whole­heartedly supported the prosecuting agency. He has also denied most of the suggestions made by the defence which is quite clear that the independent witness, who acted as a panch has supported the case of prosecution of not only the vehicle having been stopped on the road, but also having shifted from the place of seizure to the office of N.C.B. due to the darkness on the road and the safety of muddamaal and other persons. 13.1 This witness had been emphatical about the test of narcotics substance having been done in the presence. He was also repeatedly cross examined on all those aspects. The area where they were waiting for the vehicle is an industrial zone and he also agreed that the Page 28 of 129 R/CR.A/1213/2014 JUDGMENT entire contraband articles had been taken out from different packets to prepare different samples of 25 grams each. He has categorically stated that since the vehicle was stopped on the public road and it had started getting dark, it was decided to shift to the office of N.C.B. and the safety of the muddamaal and of all other persons also was getting jeopardized. With regard to the safety of the muddamaal, the preparation of the samples and their safe custody, this witness who is a panch witness and has not risiled from his version in the cross examination has fully supported the version of the prosecution and has succeeded in proving that there had been shifting of a venue from the public road to the office of N.C.B. with a design to safeguard the interest of the muddamaal, which had been seized and also for ensuring the safety of the official and panch witnesses since it was getting dark. 14. Coming to the deposition of witness No.2­ Page 29 of 129 R/CR.A/1213/2014 JUDGMENT Kamleshbhai Raamdas Parate, who was appointed as the intelligence officer at the office of N.C.B. from April, 2010, he was working as an income tax officer in Income Tax Department. That he was called by the superintendent in his office at around 01:00p.m. On 01.11.2010 to share with him the information he received in writing that one Gulmohamad Jargal @ Gul Jamadar of District Anantnaag has sent 12 kg of charas with two of his confidants, namely Mustak and Hilal in his vehicle bearing registration No.DL 6 CA 7754. This was to be delivered to Shahnavaz of Ahmedabad and Hafiz of Ankleshwar. Shahnavaz sent his man Kayyum and one another person at Abu Road. He would be sitting in the very car and arrived at Naroda Patiya at around 8 O'clock. Kayyum was to get down from car with 5 kg charas and remaining 7 kg charas was to be taken for delivery to Hafiz at Ankleshwar. 14.1 This witness was directed to make a team and was handed over the seal of N.C.B. He has Page 30 of 129 R/CR.A/1213/2014 JUDGMENT narrated in detail the recovery of muddamaal and the entire procedure which had been followed. It is thus clear that this officer along with other officials and the panchas reached at the spot at around 07:30 p.m., intercepted one vehicle bearing registration No.DL 6 CA 7754 which was driven by the accused No.3. The car had been halted and the accused No.3 was found sitting on driver's seat and accused No.4 was sitting in the co­driver's seat. When they were asked to come out of the car and thereafter the car was searched where from the secrete cavity, eight packets had been found covered with the adhesive tape. All the packets were kept in the car because of heavy traffic, with the consent of the appellants­accused. The panchas on intimating the accused thereafter gave an opportunity to them under Section 50 of the N.D.P.S. Act that if they so desire, search and seizure could be made in the presence of Government Gazetted officer or Magistrate however, he had denied to avail such offer. When the test was carried out from the Page 31 of 129 R/CR.A/1213/2014 JUDGMENT contents of the packets, the same was confirmed to be the charas. It is his say that procedurality as required under Section 50 of the N.D.P.S. Act had been followed. The panchnama according to him, had started on 01.11.2010 about 04:40 p.m. and got completed on 02.11.2010 at 01 O'clock. 14.2 This witness had issued the summons under Section 67 of the N.D.P.S. Act to Mustak Ahmad­ accused No.1 and the signature of his had been taken on summons (Exhibit 24). The statement was also recorded under Section 67 of the N.D.P.S. Act and thereafter, the accused had voluntarily given his statement which was exhibited (Exhibit 25). He was arrested as well and the arrest memo was issued to the accused (Exhibit 26). 14.3 He submitted the report under Section 57 of the N.D.P.S. Act to the Superintendent (Exhibit 28) and forwarded the letter of muddamaal which was sent to C.R.C.L., New Delhi by assured post along with the muddamaal. He also has identified Page 32 of 129 R/CR.A/1213/2014 JUDGMENT the seal, which was applied on the samples and further investigation according to him was handed over to Mr.Mukharjee. 14.4 This witness cross examined at length, where he has admitted that the search of the car was made at the spot and thirty­two samples had been taken from each muddamaal and eight packets were sent to C.R.C.L., New Delhi for analysis. He denied all the questions regarding panchnama, test of muddamaal on the spot, the presence of panchas for preparing panchnama on the spot, etc. The suggestions which have been denied by him are to the effect that he has not deposited the muddamaal in the godown as was otherwise required to be done. 14.5 It can be culled out from the record that nothing answered by him has favoured the appellants herein and most of the questions have been answered in negation by this witness. He has denied the specific question put to him in the cross examination with regard to the tampering of Page 33 of 129 R/CR.A/1213/2014 JUDGMENT the sample or misuse of the seal so also in connection with the statement recorded under Section 67 of the N.D.P.S.Act and this Court found that his deposition remains of an impeachable quality. 15. Pw­3, Dharamvir Ganeshilaal Yadav was serving in BSF, Punjab and thereafter, came on deputation to the N.C.B. as an intelligence officer from November, 2010. He has named Mr.P.N.Sarvaiya as the superintendent at N.C.B. Office and on 01.11.2010 he reached office at about 4 O'clock where a secrete information was informed to him by pw 2 Mr.Kamleshbhai Parate, and he was asked to be the part of the raiding party with other officials and they all sat in watch for the vehicle specified in a secret information. At around 7:30p.m., when one car having registration No. DL 6 CA 7754 arrived, it was intercepted and the procedure thereafter as described by other witnesses came to be followed. The summons under Section 67 of the N.D.P.S. Act Page 34 of 129 R/CR.A/1213/2014 JUDGMENT had also been issued to the accused Imran Pathan. He identified the signature of the accused/convict on the statement recorded by him (Exhibit 44). He also submitted a report under Section 57 of the N.D.P.S.Act to his superintendent on 03.11.2010, (Exhibit 46). He also has identified all the accused. 15.1 He denied the suggestion questioning continuance of investigation without any proper light. This witness categorically held that the muddamaal and samples were handed­over by him to the pw 2. He denied the suggestion that because there was a tampering of the muddamaal articles, they were apprehensive that the Court may not accept the muddamaal and hence, the delay has been caused. 15.2 Deposition of this witness also is found to be of sterling quality and his positive version is not assailed even after a detailed cross examination. Page 35 of 129 R/CR.A/1213/2014 JUDGMENT 16. P.W No.4, Mr.Prafulsinh Navalsinh Sarvaiya was working as a superintendent in N.C.B. office at the relevant point of time from the year 2008 till 29.02.2012 with Zonal Director Mr.Aayushmani Tiwari and he had couple of intelligence officer namely, Mr.H.K.Mukharjee, H.R.Sing, Nishant Shrivastav, Kamlesh Parate and Dharamvir Yadav. One Mr.Mukharjee was given written intelligence, who made noting of the same and informed the intelligence officers to form a team. On 02.11.2010 at around 01:30p.m., Shri Kamlesh Parate handed over the muddamaal to deposit with the godown and the same was deposited, the receipt of which was already exhibited (Exhibit 56). Also received the report under Section 57 of the N.D.P.S. Act prepared by intelligence officer, Mr.Kamlesh Parate so also the report prepared by Mr.Nishant Shrivastav and Dharamvir Yadav. 16.1 This witness has been cross examined at length. He denied of having misused the seal and Page 36 of 129 R/CR.A/1213/2014 JUDGMENT also denied the suggestion of not knowing anything with regard to the incident in question. 17. Pw 5 Mr.Hemantkumar Santoshkumar Mukharjee, working as an intelligence officer, was at Ahmedabad on deputation from October, 2007 to September, 2011. Originally his job was at Central Industrial Security Force (C.I.S.F.). In November, 2010 there were other intelligence officers, namely, Mr.Kamlesh Parate, Mr.S.R.Singh, Mr.Nishant Shrivastav and Mr.Dharamvir Yadav. 17.1 Mr.P.N.Sarvaiya was the superintendent and Mr.Aayushmani Tiwari was the zonal director. This witness also gave the same details as has been given by the other witnesses, with regard to the secret information received and shared with him. He also gave the details of search and seizure and the procedure which have been completed. The eight packets received and the procedure followed thereafter has been described at this stage is not further elaborated, in wake Page 37 of 129 R/CR.A/1213/2014 JUDGMENT of the detailed discussion made above of depositions of other witnesses. Investigation thereafter was transferred to this witness, who has issued the summons under Section 67 of the N.D.P.S.Act to Shahnavazkhan and also to the last owner of the vehicle, which was used in the offence. The Call Data Records of all the witnesses had been collected by him to establish that they were not in contact of each other prior to the offence. He has produced the original godown register before the Court and the zerox copies related to the relevant entries. He denied the suggestion that he was unaware of the incident which took place. It is thus culled out from the deposition of this witness that it was on the strength of the intelligence received that the N.C.B. had prepared for the raid and accordingly, the vehicle bearing registration No.DL 6 CA 7754 had been intercepted. It is to be remembered that the accused had travelled together in the same car, which admittedly is the vehicle, from where the secrete cavity and the Page 38 of 129 R/CR.A/1213/2014 JUDGMENT contraband articles had been recovered. It is also proved from the deposition of the witnesses that the Call Data Records of all the four accused had been collected by the investigating officer, which clearly revealed that they were in contact with each other prior to the said incident. The intelligence which had been received has been duly proved vide Exhibit 55 stating clearly the information of transportation of the said contraband material at the instance of the main accused and the same was endorsed by the Zonal Director, N.C.B., who directed to arrange the team and the action in accordance with law pursuant to such information. 17.2 Intelligence Officer, Mr.Nishant Shrivastav has addressed a report under Section 57 of the N.D.P.S.Act to the Superintendent, N.C.B., Ahmedabad Zonal Unit specifying therein that a specific intelligence was received on 01.11.2010 that GulMohammad Sargar @ Gul Mohammad Jargaar @ Gul Jamadar residence of Bijbehara, Jammu & Page 39 of 129 R/CR.A/1213/2014 JUDGMENT Kashmir had dispatched consignment of 12 kg charas to his trusted person, namely Mustak and Hilaal Ganie in Car No.DL 6 CA 7754. The consignment is to be delivered to one Shahnavazkhan of Shahpur, Ahmedabad and Hafiz of Ankleshwar. Shahnavazkhan sent his associate namely Kayyum and another person to Abu Road, who would be going at around 20:00 hours at Naroda Patiya in the car and would get 5 kg charas and Mustak would proceed to Ankleshwar for delivering 7 Kg of charas to Hafiz of Ankleshwar. He further reported that on the basis of the specific information a surveillance mounted at Naroda Patiya where the said car was stopped at around 19:30 hours on 01.11.2010, which was occupied by four persons each of them was asked individually. On driver seat, Abdul Kayyum was sitting, the seat of co drivers, besides the driver was being occupied by Imran Pathan while two other individual sat in the rear seat of the car who disclosed their names as Mustak Ahmed and Hilal Ganie. It was thoroughly searched and eight Page 40 of 129 R/CR.A/1213/2014 JUDGMENT packets of charas had been found in sealed in a specific welded cavity in the dickie of the car, which resulted in the recovery of 11.915 kg (net charas) from their possession. 17.3 Pw.5 Mr.Hemant Mukharji, who was also working as an intelligence officer and eventually was handed over the investigation, had produced original godown receipt and zerox copy relating to the relevant entries. Compliance of section 42 and 50 of the NDPS Act 18. The challenge made to noncompliance of Sections 42 and 50 of the N.D.P.S. Act in light of the discussion above deserve at this stage discussion. Firstly, both the provisions profitably require reproduction at this juncture. “42. Power of entry, search, seizure and arrest without warrant or authorisation­ (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central Page 41 of 129 R/CR.A/1213/2014 JUDGMENT excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para­military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; Page 42 of 129 R/CR.A/1213/2014 JUDGMENT (c) seize such drug or substance and all materials used in the manufacture there of and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he hasreas on to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot 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. (2) Where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventy­ two hours send a copy thereof to his immediate official superior. Page 43 of 129 R/CR.A/1213/2014 JUDGMENT 50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub­section (1).] (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. 1[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such Page 44 of 129 R/CR.A/1213/2014 JUDGMENT person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub­section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy­two hours send a copy thereof to his immediate official superior.]” 19. Taking up firstly the case of laws on the subject, the case of Suresh & Ors. vs. State of Madhya Pradesh, reported in 2013 SAR (Criminal) 9, firstly deserves consideration. A plea of noncompliance of Section 42 and Section 50(1) of the N.D.P.S.Act was raised. The Apex Court held that it makes it imperative for the empowered officer to inform the person concerned about the existence of his right that if he requires, he shall be searched before the nearest Gazetted Officer as prescribed under Section 42 of the N.D.P.S.Act or an Executive Magistrate. This provision being mandatory according to the Apex Court, strict compliance is a must therefore, the panchnama is required to be considered which Page 45 of 129 R/CR.A/1213/2014 JUDGMENT would indicate whether the appellants had been apprised of their right to be searched before the gazetted officer or the Executive Magistrate. “9.From the above, it is clear that the Constitution Bench has not approved the concept of “substantial compliance” as propounded in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra). Keeping the above principles, as laid down in Vijaysinh Chandubha Jadeja’s case (supra) which considered all the earlier decisions including the decision in Baldev Singh, in mind, let us consider whether the mandates of Section 50 as interpreted have been fully complied with or not? 10) Since the main question roving only to “right to inform” about his choice, it is relevant to refer the Panchnama regarding consent for personal search which is as under: “Panchnama regarding consent for personal search P.S. Kumbhraj, District Guna Crime Case No. 0/98 Section 8/18 of N.D.P.S. Act Place : A.B. Road, Khatakya Tiraha Dated: 30.7.98 at 09.30 O’ Clock Names of witnesses: 1. Sri Lal s/o Sri Narain by caste Dhobi aged 26 years 2/o Tapra Colony, Kumbhraj. 2. Bhup Singh s/o Ramnarain by caste Meena aged 25 years, r/o Kanakherhi P.S. Kumbhraj. In the presence of aforementioned ‘panchas’, I, the P.S. In­charge, asked the driver of Maruti Car No. Page 46 of 129 R/CR.A/1213/2014 JUDGMENT D.N.C./7211 namely, Pramod Kumar s/o Raghuvir Singh by caste Gadariya, aged 20 years, r/o Chitbhawan, P.S. Ekdil, District Etawah, Suresh, s/o Rambabu Khatik, aged 18 years, r/o Village Chitbhawan, sitting with him in the case and Dinesh @ Pappu s/o Jagannath by caste Dube, aged 25 years, r/o Tikri presently at village Ballapur, P.S. Ajitmal, District Etawah, sitting on the rear seat, regarding their personal search asking them as to whether they would offer their personal search to me or to Gazetted Officer – S.D.O.P. Sahib. At this, all the three suspects gave their consent for their personal search by me, the P.S. In­charge, and they also agreed for search of the car by me. Panchnama regarding consent for search has been prepared in the presence of the ‘Panchas’. [Emphasis supplied] Sd/­ Signature of suspect Sri Lal Sd/­ Suresh Sd/­ Pramod Kumar T.I. of Bhup Singh Sd/­ Dinesh Kumar @ Pappu Seen Sd/­ (Illegible) 30.7.98” 11) The above Panchnama indicates that the appellants were merely asked to give their consent for search by the police party and not apprised of Page 47 of 129 R/CR.A/1213/2014 JUDGMENT their legal right provided under Section 50 of the NDPS Act to refuse/to allow the police party to take their search and opt for being searched before the Gazetted officer or by the Magistrate. In other words, a reading of the Panchnama makes it clear that the appellants were not apprised about their right to be searched before a gazetted officer or a Magistrate but consent was sought for their personal search. Merely asking them as to whether they would offer their personal search to him, i.e., the police officer or to gazetted officer may not satisfy the protection afforded under Section 50 of the NDPS Act as interpreted in Baldev singh’s case. Further a reading of the judgments of the trial Court and the High Court also show that in the presence of Panchas, the SHO merely asked all the three appellants for their search by him and they simply agreed. This is reflected in the Panchnama. Though in Baldev Singh’s case, this Court has not expressed any opinion as to whether the provisions of Section 50 are mandatory or directory but “failure to inform” the person concerned of his right as emanating from sub­section (1) of Section 50 may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. In Vijaysinh Chandubha Jadeja’s case (supra), recently the Constitution Bench has explained the mandate provided under sub­section (1) of Section 50 and concluded that it is mandatory and requires strict compliance. The Bench Page 48 of 129 R/CR.A/1213/2014 JUDGMENT also held that failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. The concept of substantial compliance as noted in Joseph Fernadez (supra) and Prabha Shankar Dubey (supra) were not acceptable by the Constitution Bench in Vijaysinh Chandubha Jadeja, accordingly, in view of the language as evident from the panchnama which we have quoted earlier, we hold that, in the case on hand, the search and seizure of the suspect from the person of the appellants is bad and conviction is unsustainable in law. 12) We reiterate that sub­section (1) of Section 50 makes it imperative for the empowered officer to “inform” the person concerned about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate, failure to do so vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of possession of the contraband. We also reiterate that the said provision is mandatory and requires strict compliance.” 20. In a matter before the Apex Court, the appellants were not apprised of such rights of theirs and instead a consent was sought for their Page 49 of 129 R/CR.A/1213/2014 JUDGMENT personal search, the Apex Court, therefore, held that mearly asking the accused as to whether they would offer their personal search to the police officer or to the Gazetted Officer may not satisfy the protection afforded under Section 50 of the N.D.P.S.Act. Again as a portion of contraband(opium) was recovered from the vehicle, it is held that Section 50 of the N.D.P.S.Act would not be applicable and if the quantity recovered from the vehicle was to be excluded, the remaining would not come within the commercial quantity. 21. Division Bench of this Court in case of Narcotic Control Bureau Thro Intelligence Officer vs Haiderbeg Rahimbeg Mirza was examining the judgment and order of the learned Special Judge,Court No.3, City Sessions Court, Ahmedabad, in Special NDPS Case No.12 of 2012, whereby the accused was convicted for the offences under Sections 8(c) and 20(b)(ii)(B) of the NDPS Act. The Court upheld the judgment and conviction of Page 50 of 129 R/CR.A/1213/2014 JUDGMENT the Trial Court and in fact enhanced the sentence to 10 years with fine of Rs.1 Lakh. The Court noted that the Trial Court has to be satisfied affirmatively that prosecution is essentially true and the guilt of the accused has been proved beyond the reasonable doubt. The appellate court also needs to be satisfied about the guilt of the accused. The Court extensively considered various decisions of the Apex Court particularly in relation to the requirement of procedure to be followed by the N.C.B. officials under Sections 41, 42, 50, 52 and 57 of the N.D.P.S.Act and discussed at length. “23.1 In the case of State of Punjab v. Balbir Singh (1994)3 SCC 299 in para 15 reference was made to Section 42(1) of NDPS Act in the context of stringent provisions for control and regulation of operation relating to drugs and psychotropic substance vis­a­vis to avoid harm to the innocent persons and to avoid abuse of the provision by the officers, certain safeguards are provided in the NDPS Act and failure to exercise mandatory requirement while entry, search, seizure or arrest in breach thereof held to be affecting case of the prosecution and vitiating the trial. 23.2 In para 25 of the above decision, the Apex Court set out conclusions about frequently arising questions to be considered by the trial courts in the context of Sections Page 51 of 129 R/CR.A/1213/2014 JUDGMENT 41, 42, 50, 52 and 57 of the NDPS Act, which reads as under:­ “25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act, makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P.C. and when such search is completed at that stage section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance of recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. (2­A) Under section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act, etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41 (2) and 42 (1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. Page 52 of 129 R/CR.A/1213/2014 JUDGMENT (2­B) Under section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2­C) Under section 42(1) the empowered officer if he has prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offneces are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42 (1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non­ compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. Page 53 of 129 R/CR.A/1213/2014 JUDGMENT (4­A) If a police officer, even if he happens to be an empowered officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. P.C. fails to strictly comply with the provisions of sections 100 and 165, Cr. P.C. including the requirement to record reasons, such failure would only amount to an irregularity. (4­B) If an empowered officer or an authorised officer under section 41(2) of the Act, carries out a search, he would be doing so under the provisions of Cr. P.C., namely, sections 100 and 165, Cr. P.C. and if there is no strict compliance with the provisions of Cr. P.C. then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. (5) On prior information, the empowered officer or authorised officer while acting under section 41(2) or 42 should comply with the provisions of section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non­compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. Page 54 of 129 R/CR.A/1213/2014 JUDGMENT (6) The provisions of sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under sections 41 to 44 are by themselves not mandatory. If there is non­ compliance or if there are lapses like delay, etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. 23.3 A three Judges Bench in the case Saiyad Mohd. Saiyad Umar Saiyed & ors. v. State of Gujarat (1995)3) SCC 610 endorsed the judgment of Balbir Singh [supra]. 23.4 A Constitution Bench of the Apex Court in the case of State of Punjab v. Baldev Singh (1999)6 SCC 172 again considered the provisions of NDPS Act and earlier judgment and noticed that judgment in the case of Balbir Singh [supra] which found approval by three judges bench in Saiyad Mohd. Saiyad Umar Saiyed [supra] and a contrary view to some extent was taken by two judges bench in the case of State of Himachal Pradesh v. Pirthi Chand & Anr. (1996)2 SCC 37, the Constitution Bench approved the view taken by the Apex Court in the case of Balbir Singh [supra] that it is an obligation of mandatory nature upon authorized officer under Section 50 of the NDPS Act to inform the suspect that he has right to be informed in the presence of the Gazetted Officer and if the search is conducted in violation of Section 50 it may not vitiate the trial but that would render the recovery of illicit articles doubtful and vitiates the conviction and sentence of the accused. A Constitution Bench of the Apex Court had an occasion to again consider Section 50 of the NDPS Act in the case of Baldev Singh (supra) in which safeguards provided in Section 50 about basic right of an accused were considered and in para 57 has concluded as under:­ Page 55 of 129 R/CR.A/1213/2014 JUDGMENT “57. On the basis of the reasoning and discussion above, the following conclusions arise : (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub­section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2). That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act; (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action Page 56 of 129 R/CR.A/1213/2014 JUDGMENT against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut­short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub­section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be Page 57 of 129 R/CR.A/1213/2014 JUDGMENT used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. (9) That the judgment in Pooran Mals case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffas case correctly interprets and distinguishes the judgment in Pooran Mals case and the broad observations made in Pirthi Chands case and Jasbir Singhs case are not in tune with the correct exposition of law as laid down in Pooran Mals case.” 23.5 In the case of Basheer v. State of Kerala, [2004] 3 SCC 609 proviso to section 41(1) of the amending Act 9 of 2001 was held to be constitutional and not hit by Article 14 the Constitution of India. 23.6 The case of Vijaysinh Chandubhai Jadeja v. State of Gujarat, (2011) 1 SCC 609] was referred to a Constitution Bench of the Apex Court to decide the question as to whether Section 50 of NDPS Act casts a duty on the empowered officer to inform the suspect of his Page 58 of 129 R/CR.A/1213/2014 JUDGMENT 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 Section 50? 23.7 In the above case, a Constitution Bench of the Apex Court after considering the controversy involved in the matter has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provisions of Section 50 must be very strictly construed. The nature of discharge of obligation upon the authority under Section 50 is statutory and is not to be deviated. Before deciding above issue, in paragraph 22 the Apex Court considered provisions of Section 41 and in paragraph 23 conclusions drawn by earlier Constitution Bench in the case of Baldev Singh (supra) were considered. The Apex Court, in the above judgment, while answering the reference, in paras 28 to 32 held as under: “28. We shall now deal with the two decisions, referred to in the referral order, wherein \"substantial compliance\" with the requirement embodied in Section 50 of the NDPS Act has been held to be sufficient. In Prabha Shankar Dubey (supra), a two Judge bench of this Court culled out the ratio of Baldev Singh's case (supra), on the issue before us, as follows: \"11. ...What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word \"right\" at relevant places in the decision of Baldev Singh case seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the Page 59 of 129 R/CR.A/1213/2014 JUDGMENT \"suspect\" at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it.\" However, while gauging whether or not the stated requirements of Section 50 had been met on facts of that case, finding similarity in the nature of evidence on this aspect between the case at hand and Joseph Fernandez (supra), the Court chose to follow the views echoed in the latter case, wherein it was held that searching officer's information to the suspect to the effect that \"if you wish you may be searched in the presence of a gazetted officer or a Magistrate\" was in substantial compliance with the requirement of Section 50 of the NDPS Act. Nevertheless, the Court indicated the reason for use of expression \"substantial compliance\" in the following words: \"12. The use of the expression \"substantial compliance\" was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case. A line or a word 2 in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations.\" It is manifest from the afore­extracted paragraph that Joseph Fernandez (supra) does not notice the ratio of Baldev Singh (supra) and in Prabha Shankar Dubey (supra), Joseph Fernandez (supra) is followed ignoring the dictum laid down in Baldev Singh's case (supra). Page 60 of 129 R/CR.A/1213/2014 JUDGMENT 29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorized officer under sub­section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. 30. As observed in Re Presidential Poll, in re: “13. ...It is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. \"The key to the opening of every law is the reason and spirit of the law, it is the animus imponent is, the intention of the law maker expressed in the law itself, taken as Page 61 of 129 R/CR.A/1213/2014 JUDGMENT a whole.\" 31. We are of the opinion that the concept of \"substantial compliance\" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub­section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. 32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of 14 (1974) 2 SCC 33 2 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. (Emphasis supplied) 23.8 Vijaysinh Chandubhai Jadeja [supra] considered in length, provisions of Section 50 of the NDPS Act by referring to decision of constitution Page 62 of 129 R/CR.A/1213/2014 JUDGMENT Bench in the case of Baldev Singh [supra] and also Karnail Singh [supra] and paras 20, 21, and 22 conclusions are given by reiterating law laid down in the case of Baldev Singh [supra] and even concept of 'substantial compliance' with the requirement of Section 50 of the NDPS Act is held to be neither born out form the language of sub­section (1) of section nor it is in consonance with the dictum laid down in the case of Baldev Singh [supra]. 23.9 In the case of Myla Venkateswarlu v. State of Andhra Pradesh (2015)5 SCC 226, the Apex Court held that a clear communication with clarity is must while complying with Section 50(1) of The NDPS Act and such communication will qualify as a valid communication of the right under Section 50(1) of the NDPS Act, which must contain three elements; [1] That the person sought to be searched has a right of being taken to the nearest Magistrate or gazetted officer in whose presence the search of his person would be conducted; and [2] Of being taken to the nearest Magistrate or gazetted officer [it seems that a government communication that the accused has the right of the presence of a Magistrate or gazetted officer at the location where the person has been accosted for th search would not be enough; it has to be communicated that the said accosted person has the right to be taken to the location where the Magistrate or gazetted officer is; such an interpretation seems consistent with the safeguard that Section 50(1) seeks to provide i.e. that people do not have narcotics planted on them by the police or others; and [3] That the right under Section 50(1) pertains to being taken to either the nearest Magistrate or gazetted officer other than the searching Page 63 of 129 R/CR.A/1213/2014 JUDGMENT officer, and that there must a clear communication of this choice i.e. there must be a mention of the nearest [I] Magistrate, and [ii] gazetted officer, and [iii] that the accosted person has a choice to be taken to either of them. 23.10 The above judgment also referred to decision in the case of Baldev Singh [supra].” 21.1 In the context of the law laid down by the Apex Court in connection with Sections 42, 50 and 57 of the N.D.P.S.Act as discussed hereinabove, on reverting to the facts, the information received by Mr.K.R.Parate was duly typed and had been reduced in writing as provided under Section 41 (2) (i) of the N.D.P.S.Act. The appellant­accused had also been asked the question in Hindi and later on, translation was made in Gujarati although all of them were familiar with the Hindi language. This was in consonance with the requirement under Section 42 (2) (i) of the N.D.P.S.Act and law laid down by the Apex Court in case of Karnail Singh v. State of Haryana, (2009) 8 SCC 539. It is also to be remembered that Mr.Parate himself was a Gazetted Page 64 of 129 R/CR.A/1213/2014 JUDGMENT Officer who had communicated to the accused and made them aware of their right to be searched in presence of the Gazetted Officer or before a Magistrate and this also has emerged from the material adduced before this Court, thereby fulfilling the obligation of law as emphasized in case of Vijaysinh Chandubha Jadeja (supra). 22. In case of Dilbagh Singh vs. State of Punjab, reported in 2016(0)AIJEL­SC 59461 the applicability of Section 50 of the N.D.P.S.Act is comprehended and called for only in the case of search of a person as distinguished from search of any premises. Contraband article in case before the Apex Court had been recovered from inside the car in which the petitioner and the co­accused were travelling at the relevant point of time and not in course of the search of their person. Therefore, the Court held that Section 50 of the NDPS Act had no applicability. The Court also held that if there was noncompliance of Sections 50 and 57 of the NDPS Act, they were dealing with steps to be taken by the officers after making Page 65 of 129 R/CR.A/1213/2014 JUDGMENT arrest or seizure under Section 41 and 44 as they by themselves are not mandatory and if there as non­compliance or any delay, was involved with regard thereto, then, it has to be examined, to ascertain as to whether prejudice had been caused to the accused and whether such failure would have a bearing on the appreciation of evidence regarding arrest or seizure. There was a recovery of six bags of Poppy Husk from car which the accused were driving & from appraisal of the testimony of the seizure witnesses, the Court held the same fully substantiated. The recovery of the contraband and sealing of samples and the same being forwarded to the Forensic Science Laboratory through Malkhana also stood established and the certificate of the Chemical Examiner, Forensic Science Laboratory was to the effect that the seal of the samples was found intact and the same tallied with the specimen seals which also ruled out the possibility of any tampering of muddamal article. It was a case where contraband was recovered from the car while Page 66 of 129 R/CR.A/1213/2014 JUDGMENT the same was being driven by one of the accused persons in the company of the others, this also authenticated the charge of conscious possession of the six packets of Poppy Husk and therefore, the same negated the possibility of any planting. There was no evidence of bias or malice against the Investigating Agency. “13.Whereas the conditions under which, the search as contemplated in Section 50 are limited only to the contingency of search of any person, Section 57 prescribes that whenever any person makes any arrest or seizure under the Act, he would within 48 hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. As it is no longer res integra that the application of Section 50 of the Act is comprehended and called for only in the case of search of a person as distinguished from search of any premises etc. having been authoritatively propounded by the two Constitution Bench rulings of this Court in State of Punjab vs. Baldev Singh – (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja vs. State of Gujarat – (2011) 1 SCC 609, further dilation in this regard, in the attendant facts and circumstances of the case, is considered inessential. This is more so as the contraband in the case in hand had been recovered from inside the car in which the petitioner and the co­accused were travelling at the relevant point of time and not in course of the search of their person. Noticeably, it had also not been the plea of the defence ever that the alleged seizure according to the accused persons had been from their person. In the contextual facts therefore, Section 50 has no application to espouse the cause of the defence. Page 67 of 129 R/CR.A/1213/2014 JUDGMENT 14.Qua the imputation of non­adherence of the requisites of Section 57 of the Act, suffice it to note that both the Courts below, on an analytical appreciation of the evidence on record have concurrently concluded that the Investigating Officer at the site, had after the arrest of the accused persons and or seizure of the contraband forwarded the information with regard thereto to his higher officer, namely, Deputy Superintendent of Police without any delay and that the related FIR with the necessary endorsements therein had reached the Ilaka Magistrate on the same date i.e. 28.08.2007 at 9 p.m. There is no evidence forthcoming or referred to by the learned counsel for the petitioner to either contradict or decimate this finding based on records. In this view of the matter as well, the assertion of non­compliance of Section 57 of the Act does not commend for acceptance. In our view, having regard to the facts available, the requirements of Section 57 of the Act had been duly complied with as well. 15.The decision in Mohinder Kumar (supra) not only is distinguishable on facts, as the search therein was of the petitioner's premises, the investigation was afflicted as well by several other omissions on the part of the authority conducting the same. Though in this rendering, it was observed that in State of Punjab vs. Balbir Singh – (1994) 3 SCC 299 the provisions of Sections 52 and 57 of the Act had been held to be mandatory in character, it is pertinent to note that this Court in Sajan Abraham vs. State of Kerala – (2001) 6 SCC 692 had exposited that Section 57 was not mandatory in nature so much so that if a substantial compliance thereof is made, it would not vitiate the case of the prosecution. Incidentally the decision rendered in Balbir Singh (supra) was rendered by a Coram of two Hon’ble Judges whereas the one in Sajan Abraham (supra) was by a three Judge Bench. Page 68 of 129 R/CR.A/1213/2014 JUDGMENT 16.In Balbir Singh (supra), a Bench of two Hon'ble Judges of this Court had enunciated, adverting to Sections 52 and 57 of the Act that these provisions contain certain procedural instructions for strict compliance by the officers, but clarified that if there was none, such omission by itself would not render the acts done by them null and void and at the most, it may affect the probative value of the evidence regarding arrest or search and in some cases, it may invalidate such arrest or search. That the non­compliance had caused prejudice to the accused persons and had resulted in failure of justice was necessary to be demonstrated, was emphasised. It was ruled that these provisions, which deal with the steps to be taken by the officers after making arrest or seizure under Section 41 and 44 are by themselves not mandatory and if there was non­compliance or any delay was involved with regard thereto, then it has to be examined, to ascertain as to whether any prejudice had been caused to the accused and further whether, such failure would have a bearing on the appreciation of evidence regarding arrest or seizure as well as on the merits of the case. (17) Be that as it may, having regard to the evidence available attesting the compliance of the requisites of Section 57 of the Act in the instant case, we need not be detained by this issue in praesenti.” 23. Yet another decision which requires to be referred to as of Arif Khan @ Agha Khan vs. State of Uttarakhand wherein Criminal Appeal No.273 of 2007 the Apex Court considered the scope of Section 50 of the N.D.P.S.Act. The Court while considering the true scope of object of Section Page 69 of 129 R/CR.A/1213/2014 JUDGMENT 50 of the N.D.P.S.Act and duties and obligation and powers of the authority under Section 50 of the N.D.P.S.Act held on the strength of the decision rendered in case of Vijaysinh Chandubha Jadeja vs. State of Gujarat, reported in 2011(1) SCC 609 that the requirement of Section 50 of the N.D.P.S.Act are mandatory. Therefore, the provisions of Section 50 of the N.D.P.S.Act must be strictly complied with and it is imperative on the part of the police officer to apprise the person intended to be searched of his right under Section 50 of the N.D.P.S. Act to be searched only before a Gazetted officer or a Magistrate. It is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate and the same requires a strict compliance. The suspect may or may not choose to exercise such powers, but so far as officer is concerned, an obligation is cast upon him by the statute. In the matter Page 70 of 129 R/CR.A/1213/2014 JUDGMENT before the Apex Court, the appellant was not produced before any Magistrate or Gazetted Officer, the search and recovery of contraband charas also was not in presence of Magistrate or Gazetted Officer and none of the police officer of the raiding party to recover the contraband charas was the Gazetted Officer. They were not empowered to search and recover from the appellant the contraband charas as required under Section 50 of the N.D.P.S.Act. 24. In the case of State of West Bengal vs. Babu Chakraborty, reported in (2004) LawSuit(SC) 965, the appeal was from the judgment and order of the Division Bench of the Calcutta High Court convicting the respondent under Section 21 of the N.D.P.S.Act. 25. The question that arose was of gross violation of the mandatory procedure prescribed in Section 42(1) and proviso to Section 42(2). There were other contradictions as well as non­ compliance of other mandatory provisions like Page 71 of 129 R/CR.A/1213/2014 JUDGMENT Section 55 and 57 of the N.D.P.S.Act and Section 102 of the Code of Criminal Procedure had been pleaded. 25.1 With regard to Section 42(1) and Section 42(2) which concerns the power of entry, search, seizure and arrest without warrant or authorisation, the Court held thus: “(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para­military forces or armed forces as is empowered in this behalf by general or special order by the Central Government , or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, policy or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or Information given by any person taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish Page 72 of 129 R/CR.A/1213/2014 JUDGMENT evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,­ (a) enter into and search any such building, conveyance or place; (b) in case of resistance; break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, if he thinks proper, arrest any person whom he has reason to believe to have committed by offence punishable under this Act; Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained Page 73 of 129 R/CR.A/1213/2014 JUDGMENT 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. (2) Where an officer takes down any Information in writing under sub­ section (l)or records grounds for his belief under the proviso thereto, he shall within seventy­ two hours send a copy thereof to his immediate official superior.\" 16. In view of the above, Section 42(2) also stood violated. The proviso to Section 42(1) requires that where an officer has reason to believe that a search warrant or authorization cannot 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 before sunset and sunrise after recording the grounds of his belief. 17.We have perused the evidence led in this regard. Neither PW 4 nor PW 2 deposed that they had complied with the procedure under Section 42(1) and the proviso to Section 42(1) and Section 42(2) before they conducted the search. It is alleged by them that on search certain Polythene Bags containing Heroin were recovered. Page 74 of 129 R/CR.A/1213/2014 JUDGMENT According to them, two independent witnesses of the locality Swapan Kumar Samanta and Ramkaran Prasad were taken and they witnessed the search. But unfortunately, these witnesses were not examined and no attempts were made to summon them at the trial. In fact, PW 2 ­ S.K. Dutta, on a specific question in cross­ examination, deposed that no search memo was prepared and, PW 4 K.L. Meena said he does not remember if any search memo was prepared. Further, it is alleged that they came to Memari P.S. at 11.30 pm and Ex. l G.D. Entry was prepared. This G.D. Entry shows that the seized articles were recovered from the bed room of the accused. The accused was also arrested on 05.05.1989. Thereafter, the case was made over to PW 3 and after receiving the report from the Central Public Health and Laboratories, the accused was sent up for trial. The trial Court convicted the accused and punished the respondent for offences under Section 21 of the Act and sentenced him to undergo 10 years R.I. and pay a fine of Rs. l lakh. 18. The accused filed an appeal in the High Court and the High Court, after finding violation of Section 42(1), proviso to Section 42(1) and 42(2) of the NDPS Act and after finding several discrepancies acquitted the respondent and awarded compensation of Rs. l lakh. Strictures have also been passed on PW 4 and PW 2 and direction to the Magistrate to prosecute PW 4 and PW 2 was ordered. Page 75 of 129 R/CR.A/1213/2014 JUDGMENT 19. As noticed earlier, the views of the High Court on Section 42 of the Act finds support from a large number of judgments of this Court. 20. In the case of State of Punjab v. Balbir Singh, [1994] 3 SCC 299, a Bench of two Judges of this Court observed as under: \"Under Section 42(1), the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1), if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent, these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2), such empowered officer who takes down any information in writing or records the Page 76 of 129 R/CR.A/1213/2014 JUDGMENT grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non­compliance of this provision, the same affects the prosecution case. To that extent, it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.\" 21.In the case of State of Punjab v. Baldev Singh, [1999] 6 SCC 172, a Constitution Bench of this Court observed in paragraphs 9 & 10 as under : \"Sub­section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter vi have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief. The proviso to sub­section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot 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 Page 77 of 129 R/CR.A/1213/2014 JUDGMENT any time between sunset and sunrise, after recording the grounds of his belief. Vide sub­section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub­section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down information received in writing with regard to the commission of an offence before conducting search and seizure. Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.\" 22. Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. This Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to a Court of law and the accused while defending his prosecution. Page 78 of 129 R/CR.A/1213/2014 JUDGMENT This Court also held that failure to comply with Section 42(1), proviso to Section 42(1) and Section 42(2) would render the entire prosecution case suspect and cause prejudice to the accused. 23. In the cases of Abdul Rashid Ibrahim Mansuri v. State of Gujrat, [2002] 2 SCC 513, Koluttumottil Razak v. State of Kerala, [2000] 4 SCC 465, Beckodan Abdul Rahman v. State of Kerala, [2002] 4 SCC 229 and in the case of Chhunna Alias Mehtab v. State of M.P., [2002] 9 SCC 363, this Court has held that the non­compliance of the provisions of the proviso to Section 42 of the Act which is mandatory, the action was held illegal and the conviction of the accused was set aside. This Court also held that the onus to prove compliance lies on the prosecution and in the absence of any prosecution evidence about the compliance with the mandatory procedure, the presumption would be that the procedure was not complied with. 24. In the case of Saiyad Mohd. Saiyad Umar Saiyad & Ors. v. State of Gujarat, [1995] 3 SCC 610, this Court held that the prosecution is obliged to give evidence of the search and all that transpired in its connection. It is very relevant that the prosecution witnesses speak about the compliance about the mandatory procedure and if under the evidence to this effect is not given, the Court must Page 79 of 129 R/CR.A/1213/2014 JUDGMENT assume that the person to be searched was not informed of the protection. The Court must find that the possession of illicit articles under the Act was not established. It has been held that when the officer has not deposed that he had followed the procedure mandated, the Court is duty bound to conclude that the accused had not had the benefit of the protection that the Act affords; that therefore, his possession of articles under Act is not established and that the pre­ condition for his having satisfactorily accounted for such possession had not been met; and to acquit the accused. 25. The above statement of law has been affirmed in the Constitution Bench judgment of this Court in the case of State of Punjab v. Baldev Singh (supra). 26. Though these observations were made in a case to which Section 50 applies, in view of the pronouncement of the judgment of three Judges of this Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat (supra), the approach by the Court in interpreting the law for the non­compliance of Section 42 and Section 50 must remain the same. In this case, PW­2 and PW­4 and any other prosecution witness do not speak about the compliance with the mandatory provisions of Section 42(1), proviso to Section 42(1) and Section 42(2). Page 80 of 129 R/CR.A/1213/2014 JUDGMENT 27. It has been held that in any case where mandatory provisions are not complied with and where independent mahazar witnesses are not examined, the accused would be entitled to be acquitted and that any seizure in violation of the mandatory provisions would be inadmissible since these provisions are in the nature of statutory safeguards. 28. In the case of Sajan Abraham v. State of Kerala, [2001] 6 SCC 692, it was a chance recovery on the road and the observations made in the said judgment have to be confined to the facts of that case. The said judgment will not apply since in this case, the recovery is alleged from the house. For the same reason, the referral order in the case of Narcotics Control Bureau v. Pradeep Nath Mathur & Anr, [2003] 10 SCC 699 also need not detain this Court since the facts here are different from the case in Sajan Abraham v. State of Kerala (supra) and a larger Bench of five Judges and three Judges have maintained that Section 42 is mandatory under the present facts. “ 25.2 The proviso to Section 42(1) thus requires that where an officer has a reason to believe that a search warrant or authorization cannot be obtained without affording opportunity Page 81 of 129 R/CR.A/1213/2014 JUDGMENT for the concealment of evidence or facility for the escape of an offender, he is permitted to enter and search such building, conveyance or enclosed place at any time before sunset and after sunrise, recording the grounds of his belief. 26. In case of the search of the vehicle, the provision of Section 50 of the N.D.P.S.Act will not be required to be complied with. However, so far as the personal search is concerned, the offender concerned has to be made aware of his right to be searched in presence of Gazetted Officer or Magistrate. The contraband article if is to be searched and recovered from the body of the suspect, the same has to be in­conformity with the requirement of Section 50 of the N.D.P.S.Act. 27. Reverting to the facts, what shall need to be seen as to whether both these provisions have been duly followed or not, starting from the Page 82 of 129 R/CR.A/1213/2014 JUDGMENT independent witness PW­1, who is the panch witness, he has spoken of the secrete information having been given in writing and intimated to them when the vehicle was intercepted, the suspects were asked by P.W.No.2 Mr.Parate as to whether they required to be searched in the presence of Gazetted Officer or Magistrate to which the suspects had denied and had agreed to be searched in presence of panchas and the staff. From the secret cavity of the car 12 kg of the charas have been found. This has been also particularly stated by Mr.Parate (P.W.2) that he was called by the superintendent to show him the written information and he had been asked to form a team and take an action. All the four accused namely, Imran Pathan, Mustak Ahmad, Hilal and Kayyum resident of Ahmedabad and Kashmir were intimated the secrete information and they were asked to be searched and were offered as to whether in the presence of Gazetted Officer or Executive Magistrate, they are required to be searched. They denied to be searched as per the Page 83 of 129 R/CR.A/1213/2014 JUDGMENT offer and instead had agreed to be searched without the presence of such officer. Accordingly, the witnesses started searching personally the suspects and also then had searched the car and from the secrete cavity, the contraband article had been found. It can be thus noticed that the mandatory provisions of Section 42(1) and proviso to Section 42(2) have been duly complied with and the officers had also complied with Section 50 of the N.D.P.S.Act, which is a mandatory provision. It is thus quite apparent from the record that before searching the suspects they were particularly asked that it is their right to be searched in presence of the Gazetted Officer or the Magistrate to which they have denied. This offer is also forming the part of the panchnama and moreover, the seizure of the article has been from the secrete cavity found out from the car therefore, to that extent, even if there is noncompliance of Section 50 of the N.D.P.S.Act, no grievance could be made. Section 50 of the N.D.P.S.Act provides for conditions Page 84 of 129 R/CR.A/1213/2014 JUDGMENT under which search of persons shall be conducted and it would not to apply to the search of vehicle. 28. This Court notices from the depositions of all six witnesses and the overall examination of entire material that there is no breach nor any violation of the Section 42(1) and proviso to Section 42(1) and for that matter of Section 50 of the N.D.P.S.Act. The witnesses having specifically denied to be searched in presence of these officers and there had been a recovery of the contraband material from the vehicle, this aspect of noncompliance of the mandatory provision cannot be held against the prosecution. 29. Yet another ground which is essentially and reiteratively argued by the learned advocate is of the appellants cannot be connected with the crime in question because articles had been seized from the dickey of the vehicle and not from the accused themselves. Page 85 of 129 R/CR.A/1213/2014 JUDGMENT 30. Allegation is also made of non­compliance of Section 55 of the N.D.P.S.Act that there was no safe custody of the article seized pending the orders of the Magistrate and even the movement of the articles has not been registered in the godown register. Section 55 of the N.D.P.S.Act provides for police to take charge of articles seized and delivered. An officer in charge of a police station is required to take charge and keep in safe custody all articles under this Act within the area of that police station, pending the order of the Magistrate. He is also to affix his seal to such articles or to take sample of from them. It is to be noted that at about 07:30 p.m. the officials and the panchas had reached to the spot where the car bearing registration No.DL 6 CA 7754 had been intercepted which was driven by the original accused No.3. Accused No.4 was next to him sitting in the seat of co­driver and accused Nos.1 and 2 were sitting on the back side. On a search carried out under Section 42 of Page 86 of 129 R/CR.A/1213/2014 JUDGMENT the N.D.P.S.Act following Section 60 of the N.D.P.S.Act of the said vehicle, of course, eight packets have been found from the dickie and the test had been carried out by a testing kit. On availing opportunity to the accused/convict under Section 50 of the N.D.P.S.Act of carrying out the search and seizure in presence of the nearest Gazetted Officer of any departments mentioned in Section 42 or to the nearest Magistrate, which the accused denied. This was done by the panchas and the officials, who were present as the part of the raiding team where they deposed that all the accused were occupying the car when it was searched. The panchnama to that effect has been carried out and as discussed hereinabove, the panch witnesses have categorically spoken of the said procedure carried out in their presence. 31. If one looks at the deposition of the seizing officer, who has given the chronology from the time when seizure has been effected and the articles were sealed, the Trial Court has rightly Page 87 of 129 R/CR.A/1213/2014 JUDGMENT concluded that suspicion raised by the defence with regard to the safe custody of the muddamaal article cannot be sustained. It is to be reiterated at this stage that after having found the contraband articles in eight packets from the secrete cavity of the car occupied by all the four accused, after some initial procedures, the officer had chosen to move to the office of N.C.B. in wake of the wee hours and also because the place of interception being the highway, the safety of all concerned and that of muddamaal was to be kept in view. The witness after witness also has been particularly examined by the learned advocate appearing for the accused on this aspect of safe custody and they have deliberately and categorically denied such suggestion of not having (i) secured custody, (ii) maintaining the same and (iii) the same having resulted into non­feasibility of tracking the very muddamaal, which had been seized from the time of seizure till the same was sent to the CNCL, New Delhi. Page 88 of 129 R/CR.A/1213/2014 JUDGMENT 32. At this stage, ratio of some of the decisions on different issues raised before this Court which are pressed into service shall need to be regarded. 32.1 In case of Bhim Ram and Ors vs. State of Assam, reported in 2012 LawSuit (Gau) 6, the appellate court was considering the judgment and order of conviction to the appellant Bhim Ram, who was sentenced under Section 20(2)(b), 53, 20(b), 55, 42, 20(B)(ii)(c) of the N.D.P.S.Act. The Court held that the recovery of contraband article when is said to have been in presence of independent person. Importance should be given to the recovery made in presence of independent witness. If no independent witness is present at the time of recovery of contraband article, the prosecution case would become doubtful and unless the charge is proved otherwise by other cogent and reliable evidence the accused shall be entitled to acquittal on benefit of doubt. The Page 89 of 129 R/CR.A/1213/2014 JUDGMENT Court further held that under the N.D.P.S.Act, stringent provisions are made for conviction and the principle of law is that more stringent is the provision of conviction more rigorous investigation and the trial is necessary. This being the well established principle, there could be no possible disagreement with the same, however, in criminal trial, what is far important to be considered is the fact as may have come on the record on proof on the strength of the evidence adduced. Later on, in this judgment, this aspect shall be further regarded. 32.2 In case of HUJUL AKBAR AND ANR VS. STATE OF M P, reported in 2010 LawSUit(MP)995, Madhya Pradesh High Court was considering the appeal by the appellant against the judgment and order of the Special Judge, N.D.P.S.Act. The question which was addressed was with regard to the consent for personal search under Section 50 of the N.D.P.S.Act recorded of the accused. The Page 90 of 129 R/CR.A/1213/2014 JUDGMENT Court held that some of the accused were not knowing Hindi, therefore the investigation was defected and in such circumstances, the panchnama prepared in the same language which was understandable to the accused person and their true translation in Hindi and English must have been attached. Here also the Court did not find in the evidence before the trial Court that the seizure memo and other panchnama were not supported by the independent witness. The conscious possession of the appellant over the contraband article Heroin also had been held to be proved. The Court held that there was non­ compliance of Section 50 of the N.D.P.S.Act and the appellants were South Indian not knowing Hindi language, but know translation was produced to complete the proceeding. There was no explanation of delay of five months in sending the seized property to Court. The impression of seal also was not deposited in Malkhana. Accordingly, the Court had held that there was possibility of tampering cannot be ruled out. Page 91 of 129 R/CR.A/1213/2014 JUDGMENT Accordingly, the accused were given the benefit of doubt. 32.3 In case of Rajendra @ Ramjanam Patel vs. State of Madhya Pradesh, reported in 2013 LawSuit(MP) 10, again the appellate court was considering the common judgment and order passed by the Special Judge under the N.D.P.S.Act. The main defence of the accused­appellants was that they were gratuitous passengers in the vehicle and there was no conscious possession of theirs of contraband substance. The Court also found that S.H.O. of the Police Station did not take care whether the appellants were gratuitous passengers or they were in conscious possession of the contraband substance. The intelligence officer ought to have interrogated the appellants to know about the origin of “Ganja”, from where it was brought in the vehicle and who was the cosigner and consignee of the Ganja. The Court held that if the gratuitous passenger takes a lift in the vehicle and then he cannot object Page 92 of 129 R/CR.A/1213/2014 JUDGMENT about the goods kept in the vehicle either by the driver or by the other passengers and thereafter, if he was found in the vehicle, he cannot be held guilty because he was not having conscious possession of the contraband article. It is further held by the Madhya Pradesh High Court that the investigating officer would not establish the origin of consignment and a serious doubt was created with regard to the conscious possession and hence the appellant­accused cannot be held guilty. 32.4 This Court in case of Rajeshwarsing Natthusing vs. State of Gujarat was examining the judgment and order of the learned Additional Sessions Judge, Rajkot rendered in Sessions Case No.44 of 1998 and convicted the original accused for the offence punishable under Section 22 of the N.D.P.S.Act. Various grounds were raised before the Division Bench, which eventually had allowed the appeal in a given peculiar facts of that case and quashed and set aside the judgment Page 93 of 129 R/CR.A/1213/2014 JUDGMENT and order of conviction. The issue before the Court was of improper sealing of muddamal article resulting into creating serious doubt of trail of the same against the evidence of the witnesses in this regard, the FSL report indicated that sealed paper parcel was received which contained plastic bag having two other plastic bags. Parcel also contained panch slip having signature of panch witness as well as the accused. From this description found in the FSL report, it appears that the slip was loosely kept in the parcel and it was not affixed on the parcel as required under the law, which was also to be major contradiction in the FSL report as well as the evidence of prosecution witnesses. The sealing procedure adopted was also found to be very defective by the Court to hold that possibility of tampering cannot be ruled out. Because of the material contradictions between the deposition of the prosecution witnesses regarding sealing procedure and FSL report, the Court held that the possibility of tampering with the contents of the Page 94 of 129 R/CR.A/1213/2014 JUDGMENT samples before they were sent to FSL for analysis since could not be ruled out, the evidence was not held satisfactory to sustain conviction. 33. Likewise, in case of Dashrathsinh Sampatsinh Rajput vs State of Gujarat the issue of the seal also was agitated in appeal before the Division Bench arising from the judgment and order of conviction and sentence rendered by Special Judge, Fast Track Court No.3, Surendranagar, in Special (NDPS) Case No.5 of 2001. The strong protest lodged before the Division Bench against sealing procedure adopted by the prosecution. The main grievance on the part of the appellant was that identity of muddamaal and samples sent to the FSL had not been established and there was a possibility of tampering with the contents of the samples, which were not kept in safe and proper custody and the sealing procedure was absolutely defective. The Court after detailed discussion of Section 55 of the N.D.P.S.Act also favoured the appellant. It Page 95 of 129 R/CR.A/1213/2014 JUDGMENT was held that Section 55 of the N.D.P.S.Act deals with Police to take charge of articles seized and delivered. It also provided that Officer in charge of police station shall allow any officer depositing the seized articles to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer­in­charge of the police station. There is no other provision, which would be applicable so far as taking of sample and sealing of the same and assigning the same to the chemical annalist is concerned. 33.1 Worthwhile it is to reproduce the Central Government Standing Instruction and Standing Order which have been referred to by the Division Bench in this regard. “Standing Order No. 1/88 dated 15.03.1988, Standing Order No. 2/88 dated 11.04.1988 and Standing Order No. 1/89 dated 13.06.1989 are required to be looked into. Standing Instruction 1/88 speaks about procedure regarding drawl, storage, testing and disposal of samples from seized narcotic drugs and psychotropic substances. Standing Order No. 2/88 deals with receipt, custody, storage and disposal of seized/confiscated narcotic drugs Page 96 of 129 R/CR.A/1213/2014 JUDGMENT and psychotropic substances. Standing Order No. 1/89 relates to general procedure for sampling, storage etc. Standing Instruction / Order No. 1/88 inter alia provides as under :­ (i) If the drugs seized are found in packages/containers, the same should be serially numbered for purpose of identification etc. (ii) Samples must be drawn on the spot of recovery in duplicate, in the presence of search (panch) witnesses and the person from whose possession the drug is recovered. (iii) The quantity to be drawn in each sample should be 5 gms in respect of all narcotic drugs and psychotropic substances except in the cases of opium, ganja and charas, hashish where a quantity of 24 gms in each case is required. The same quantity should be taken for the duplicate samples also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn. (iv) In the case of seizure of a single package/container one sample in duplicate is to be drawn. In case of seizure of more than one packages/container one sample in duplicate from each package/container should be drawn. (v) All samples must be drawn and sealed in the presence of the accused, panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose possession the drugs have been recovered, wants to put his own seal on the Page 97 of 129 R/CR.A/1213/2014 JUDGMENT sample, the same may be allowed on both the original and duplicate of each sample. (vi) The sample in duplicate should be kept in heat sealed plastic bags. The plastic bags should be kept in a paper envelope and properly sealed. Such sealed envelope should be marked as original and duplicate. (vii) The samples should be dispatched to the respective laboratories under the cover of a Test Memo which shall be prepared in triplicate in proforma NCB­1. 11.Despite the aforesaid Standing Orders / Instructions, the proper procedures are not being followed by the Investigating Agency and cases have come up before the Court. In the case of Chandrakant Nagindas Modi V/s. State of Gujarat, 1989 (I) FAC 153, this Court has taken the view that the muddamal was not properly sealed and there was all possibility of substituting the substance. Coupled with this, the fact that the muddamal remained with the police for more than two months raises a doubt. The prosecution has, therefore, failed to establish the offence beyond reasonable doubt against the appellant. The Court further held that this aspect has escaped the notice of the Learned Trial Judge and in view thereof, the Court allowed the appeal and acquitted the appellants. 12.In Criminal Appeal No. 323 of 1996, in the case of Jitendra @ Sanjaykumar Suryakant Desai V/s. State of Gujarat decided on 17.08.2001, the Court has taken the view that the contention regarding laxity in following the procedure relating Page 98 of 129 R/CR.A/1213/2014 JUDGMENT to sealing of the seized contraband articles has some substance. After considering the evidence of the Investigating Officer and Panch witnesses, the Court has observed that after drawing the samples, at the time of sealing the samples as well as the remainder of the contraband seized, the slips containing signatures of the Panch witnesses and the Police Officer were placed inside the bags, thereafter the bags were stitched and wax seals were applied. There is no dispute that the Seal remains in custody of the police. The possibility of tampering with the muddamal at a later stage and then again resealing the same by the Investigating Agency cannot be ruled out. The very purpose behind carrying out the search, taking of sample and sealing in presence of Panch witnesses is to ensure that there is no scope for any mischief in procedure required to be followed. At the time of sealing, slips containing signatures of Panch witnesses as well as the Investigating Officer are affixed on the articles seized and a seal is applied over it, so that, in case of any attempt for tampering with the article seized, the seal would be broken or the slip would be torn which would immediately reveal such an attempt. If the slip is put inside as was done in that case, the possibility of tampering cannot be ruled out. Under the circumstances, the Court held that the procedure followed for sealing in that case cannot be said to be proper and free from any possibility of tempering. The procedure,therefore, cannot be said to be beyond the scope of any reasonable doubt and in that event, benefit must go to the accused. 13. This Court has again considered this issue in Criminal Appeal No. 287 of 1999 in the case of Ganpatram Punmaram Vishnoi V/s. State of Gujarat decided on 07.05.2002 Additional Public Page 99 of 129 R/CR.A/1213/2014 JUDGMENT Prosecutor, as an officer of the Court, has pointed out in the case that no proper sealing has been done by the PSO and, therefore, possibility of tampering with the muddamal cannot be ruled out. The Court took the view in that case that the slip signed by the panchas as well as the PSO, which was kept along with the polyethylene bag is required to be affixed at the outer portion below the wax seal of the police station. If the police keeps the slip signed by the panchas and the PSO along with the sample muddamal and affix the seal of the police station at the outer portion of the bag, possibility of tampering the muddamal cannot be ruled out as the official seal always remains with the concerned police station. The Court, therefore, held that it is obligatory on the part of the police to see to it that the slip signed by the panchas as well as the concerned Officer is affixed at the outer portion of the sample bag below the official seal of the police station. This procedure will totally rule out the possibility of any tampering with the sample muddamal. This has not been done in that case and hence, the Court held that the procedure adopted by the PSO cannot be said to be free from any doubt and the possibility of the tampering also cannot be ruled out. The Court held that in any case, the benefit must go to the accused. All the aforesaid three judgments have been referred to and relied upon by this Court in its later decision in the case of Navinkumar @ Shambhuprasad @ Bapji Chimanlal Vyas V/s. State of Gujarat, 2006 (1) G.L.H. 409 and also in the case of Kamlaprasad Ramjiprasad Gupta And another V/s. State of Gujarat in Criminal Appeal No. 1366 of 1999 with Criminal Appeal No. 34 of 2000 decided on 21.09.2006 held that the slips bearing signatures of the panch­witnesses should be affixed on samples and thereafter seals should be applied so that if any attempt Page 100 of 129 R/CR.A/1213/2014 JUDGMENT is made to tamper with sample, the slips affixed would get torn.” Considering entire procedure laid down in the standing instruction and orders as well as the ratio laid down in different judgments, the appellate court did not find the proper procedure to have been followed by the prosecution. The slips were loosely kept in the bag and they were not tied on the top of the bag over which the seals were affixed. There is no contradiction with regard to the placing of seal in the bag containing sample in the deposition of the police witnesses and the panchnama on one hand and FSL Report on the other hand. Serious doubt according to the Court was raised in wake of this evidence in respect of custody of the muddamal article and tampering of the samples. 34. With regard to the tampering of the seal the decision of Division Bench of this Court (Coram:Justice R.K.Abichandani and Justice D.K.Trivedi) in case of Mohmad Salim Sabir Page 101 of 129 R/CR.A/1213/2014 JUDGMENT Hussein Qureshi vs. State of Gujarat deserves reference. As per the charge, the accused was found in possession of six packets of `charas' in all weighing 910 grams. It was contended before the Division Bench of this Court that accused was not knowing Gujarati and therefore, the proceedings were vitiated. The Court held that such contention is wholly misconceived. It was only after the prosecution evidence was closed by `purshish' that such purshish came to be filed later by an advocate for closing evidence in the entry made in the Rojnama. The accused was represented by a Gujarati knowing counsel, who had not only a duty bound towards the accused, but towards the Court also. This aspect ought to have been disclosed before the Court. Further statement recorded under Section 313 of the Code of Criminal Procedure. Accused were made to understand all the questions put to them in Hindi and they answered the same after understanding them. Page 102 of 129 R/CR.A/1213/2014 JUDGMENT 35. In case of Gulam Mohammad Malik vs. State of Gujarat, reported in 2017(0) AIJEL­SC 60145, there was a recovery of contraband and a conviction. The confessional statement had been recorded. The plea was that no such statement could be used unless accused is arrested and no such arrest was shown at the time when the appellant had made statement, though he was in custody. Again the statement was taken in Hindi where infact the appellant had known Urdu language. The Court held that accused accepted that he knew Hindi language and while recording of statement it was specifically stated that statement was read out to him and he understood thereafter put his signature. Therefore, the findings recorded by the Trial Court and upheld by the High Court was found proper. 36. In case of State of Punjab vs. Makhan Chand, reported in (2004) SCC (Cri) 830, the procedure had been given of drawing of samples, the Court held that if there is any non­ Page 103 of 129 R/CR.A/1213/2014 JUDGMENT compliance of Standing Order and Instructions issued by the Central Government under Section 52A(1) of the NDPS Act the trial would not be vitiated. The Court held that Section 52A(1) of the NDPS Act does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances and Secondly, when the very same standing orders came up for considerations in Khet Singh v. Union of India, reported in 2002 4 SCC 380 the Apex Court held that they are not inexorable rules and took a view that they are merely intended to guide the officers to see that a fair procedure is adopted by the Officer­in­ Charge of the investigation. From the evidence that the following are the findings: “10. This contention too has no substance for two reasons. Firstly, Section 51A, as the marginal note indicates, deals with \"disposal of seized narcotic drugs and psychotropic substances\". Under Sub­section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substance's having regard to the hazardous nature, vulnerability to theft, substitution, constraints of Page 104 of 129 R/CR.A/1213/2014 JUDGMENT proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in Sub­sections (2) & (3). If the procedure prescribed in Sub­sections (2) & (3) of Section 52 A is complied with and upon an application, the Magistrate issues the certificate contemplated by Sub­section (2), then Sub­section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under Sub­section (2) of Section 52 A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances. 11.Secondly, when the very same standing orders came up for considerations in Khet Singh v. Union of India, this Court took the vie that they are merely intended to guide the officers to see that a fair procedure is adopted by the Officer­in­Charge of the investigation. It was also held that they were not inexorable rules as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention. 12.The respondent­accused also relied on a judgment of this Court in Valsala v. State of Kerala, 1993 Supp. (3) SCC 665. Considering the evidence on record, no case of tampering of the scales was made out nor has the High Court made any finding in this regard in favour of the accused. The only contention which appealed to the High Court was with regard to the violation of Section 50 of the Act. This is no longer relevant since we are in Page 105 of 129 R/CR.A/1213/2014 JUDGMENT disagreement therewith. 37. In case of AbdulSalim AbdulMunaf Shaikh vs. Narcotics Control Bureau, it was in relation to the seizure of charas and the confessional statements of the accused. The Court held that confessional statements retracted at a later stage is an outcome of after thought and allegations of coercion, undue influence were to be held negated on facts and the conviction had been confirmed. Here also, the search was not a personal search of a person. The Court held that applicability of Section 50 of the N.D.P.S. Act would be in case of personal search of a person, when there was no personal search of the person the Court held that there was no requirement of Section 52 of the N.D.P.S. Act to be followed mandatorily. On Section 67 of the N.D.P.S. Act, the grievance had been raised before the Court and the Court negated the same by holding thus: “23.1 On behalf of the appellants, case of Union of India Vs.Bal Mukund & Ors. 2009(2) Supreme 170 was relied upon. In said case, the statements of the appellants accused were recorded u/s.67 of the NDPS Page 106 of 129 R/CR.A/1213/2014 JUDGMENT Act. Considering the facts of said case, Hon'ble Apex Court considered the infirmities in the prosecution case. There was outright non­compliance of the mandatory provisions contained u/s.42 of the Act. During the course of trial before the trial Court, the confessional statements were retracted. It was further observed that the confession of accused u/s.67 of the NDPS Act does not bind his co­accused. In said background and considering the peculiar facts and circumstances of the said case and the infirmities emerged from the evidence on record, Hon'ble Apex Court held that the conviction should not be based merely on the basis of a confessional statement without any independent corroboration. Now, the facts of our case are totally different. In our case, as stated above, no mandatory requirements laid down under the Act have been violated by the NCB Officers. Nothing transpires that the evidence of the NCB Officers suffers from material discrepancy or infirmity. In the instant case, there is nothing that the statement of co­accused is used while recording the conviction. All the appellants accused individually made their statements u/s.67 of the NDPS Act before the concerned authorities. 23.2 Under such circumstances, considering the facts and circumstances of the instant case and considering the facts and circumstances and evidence in Kanaiyalals Case (supra), we are of the considered opinion that the statements recorded under Section 67 of the NDPS Act of the appellants accused deserve to be considered. Nothing transpires that the statements are outcome of any coercion, undue influence or any promise. On behalf of the appellants case of Raju Premji Vs.Customs NER Shillong Unit reported in 2009 AIAR (Cr.) 531 is relied upon. However, considering the facts of the said case, which was arising under this Act, the search of accused persons was conducted without complying with Section 50 of the Act. The accused persons were not actually found in possession of any contraband. Moreover, when the statements of accused persons were Page 107 of 129 R/CR.A/1213/2014 JUDGMENT recorded, they were in police custody. Hon'ble the Apex Court in paragraph 19 observed that statement made by them while in custody of Police Officer would be inadmissible in evidence. In paragraph 23 of said judgment, Honble Apex Court further observed that where a confessional statement is voluntary and free from any pressure must be judged from the facts and circumstances of each case. Thus, the facts of our case are totally different. In the present case, nothing transpires that at the time when the statements of the appellants accused were recorded under Section 67 of the Act, they were in police custody or that they were actually arrested. To put it differently, there is nothing that statements were post arrest statements.” Considering the case on Kanaiyalal Vs. Union of India (2008)2 SCC (Cr.) 474, Hon'ble Apex Court dealing with the provisions contained u/s.67 of the Act held that the statement contemplated u/s.67 of the Act, is not the same as statement under Section 161 of the Cr.P.C.. The Hon'ble the Apex Court further held that the consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the Court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence. In para 41 of the judgment, Hon'ble the Apex Court, considering the similar provisions in other statutes held that at the stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him, he could be made an accused subsequently. It is further held that as long as such statement was made by the accused at the time he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operated nor would the provisions of Article 20(3) of Page 108 of 129 R/CR.A/1213/2014 JUDGMENT the Constitution be attracted. Moreover, considering said case, it further transpires that the confessional statement was retracted by the accused immediately after its recording. Hon'ble Apex Court about the retraction of confessional statement in para 47 of the judgment observed that though an appilcation was made for retracting the confession made by the appellant, neither was any order passed on the said application nor was the same proved during the trial, so as to water down the evidential value of said statement. Ultimately, in the said para 47, Hon'ble the Apex Court held that since a conviction can be maintained solely on the basis of such confession made u/s.67 of the NDPS Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant. Moreover, in the instant case, it is pertinent to note that the trial Court recorded conviction of the appellant accused persons regarding offences arising under the NDPS Act read with Section 29 of the Act. Relevant part of Section 29 of the Act runs as under:­ Section 29 Punishment for abetment and criminal conspiracy: (1) Whoever abets or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets..... 28. On behalf of the appellants it was further submitted that if the statements of the appellants recorded under Section 313 of the Cr.P.C. are considered, almost identical questions were put to all the accused Page 109 of 129 R/CR.A/1213/2014 JUDGMENT irrespective of fact whether particular question was relevant to particular accused or not and thereby a prejudice was caused to the accused. We have minutely taken into consideration the further statements of the accused recorded by the trial Court under Section 313 of the Cr.P.C. However, considering the further statements, it appears that entire material emerged from the evidence on record and used against them was put to all the accused persons, and nothing is specifically indicated that any material ultimately used by the trial Court while recording the conviction of the accused was not put to him and he was not given any opportunity to explain such material and his conviction was recorded. However, we do not find any illegality or any infirmity committed by the trial Court while recording the further statements of the accused under Section 313 of the Cr.P.C. 29. On behalf of the appellants, it was submitted that the trial Court misinterpreted the provisions regarding the presumption contained under Section 35 and Section 54 of the NDPS Act. Section 35 of the Act pertains to presumption of culpable mental state and Section 54 pertains to presumption from possession of illicit articles. It is submitted that straightway presumptions cannot be raised and initial burden lies upon the prosecution to prove its case beyond any reasonable doubt. In this connection, considering the facts and circumstances and evidence on record in the instant case, we are of the considered opinion that the initial burden about proving the case beyond any reasonable doubt has properly been discharged by the prosecution. The prosecution proved beyond reasonable doubt the nexus and connection of the appellants accused with the contraband article Charas. Once the initial burden is discharged, the trial Court rightly raised the presumption regarding the culpable mental state and the presumption contained under Section 54 of the Act. Considering the provisions contained under Section 54 of the Act, it is clear that once the prosecution adduced evidence, connecting the accused with the contraband substance under the Act and the Page 110 of 129 R/CR.A/1213/2014 JUDGMENT evidence is found to be beyond any reasonable doubt, the burden shifts upon the accused to satisfactorily account for said possession. In the instant case, the only defence raised by the appellants accused is of bare denial. To put it differently, the presumption contained under the Act has not been duly rebutted by the accused. 30. In light of the entire above discussions, therefore, we are of the considered opinion that the trial Court rightly recorded the conviction of the appellants accused for the offences charged against them. The appellants accused Nos.1, 3 and 4 are convicted of the offences pertaining to commercial quantity of contraband substance Charas and the trial Court, therefore, rightly awarded the minimum sentence prescribed under Section 20(b)(ii)(c) of the NDPS Act and rightly awarded the sentence of R.I for ten years and fine of Rs.1 Lac. “ STATEMENTS UNDER SECTION 67 OF THE N.D.P.S.ACT AND THE LAW ON SUBJECT: 38. So far as the question of appreciating the statement given under Section 67 of the N.D.P.S. Act is concerned, this Court could notice that the statements of all the four accused have been recorded after they were explained individually at different times, regarding the summons issued. The arrest had been effected in case of each of them after their statements were recorded. The prosecution has not solely relied on the statement under Section 67 of the N.D.P.S.Act, Page 111 of 129 R/CR.A/1213/2014 JUDGMENT however, it has taken aid of those statements. The entire conspiracy gets revealed from these statements and that also further involves each of the accused indubitably in the crime in question. It would be apt to summarily reflect on the statements of one of the accused, the intelligence officer concerned, who had issued the summons under Section 67 of the N.D.P.S.Act also identified the signatures and issuance of the summons. These documents have been duly exhibited and taken into consideration by the trial Court. 38.1 This report further indicates that summons under Section 67 of the N.D.P.S.Act had been issued by this officer to Mr.Hilal Gani to record his statement on 02.11.2010, where he admitted his possession and transportation of charas. He is the residence of Tehsil District Anantnaag, Jammu & Kashmir. He was arrested on 02.11.2010 at 04:00 hours for his alleged involvement in this seizure of Narcotics Drugs Page 112 of 129 R/CR.A/1213/2014 JUDGMENT and was also communicated the grounds of his arrest. He was produced before the Court of learned Chief Metropolitan Magistrate on the very same day and was sent to the judicial custody. After his statement is recorded, which has his signatures on each page, he admitted that he can understand and speak Hindi however, he cannot write. He has signed on each page in English. According to him, in the statement, he was basically a driver, who was driving mini bus and was getting Rs.1500 to Rs.1800 then he was driving Sumo car where he was getting Rs.2000. He knew Mustaq from the childhood, who is driver at Primary Health Centre (P.H.C.) Mustaq also was in the trade of charas. He was buying it from Gul Mohammad and he was introduced to Gul Mohammad by Mustaq. He expressed his desire to trade in charas. Mustak was to go from Anantnaag to Ankleshawar, Gul Mohammad asked Mustaq to take this accused Hilal Ahmed with him and had ensured to give him Rs.10,000/­. He agreed and even otherwise, because of strike of the taxi he was Page 113 of 129 R/CR.A/1213/2014 JUDGMENT in a dire need of money. The vehicle No.DL 6 CA 7754 was managed by GulamMohammad. He also made a secrete cavity in the car where 12 kg was kept, with 5 kg to be delivered to Shahnavaz at Ahmedabad and Hafiz was to be given at Ankleshwar remaining 7 kg. Through his mobile phone No.09596319419, he was in constant contact with Mustaq whose mobile phone No.09906949931 and mobile phone number given of GulMohammad, is 09622863408. They left Anantnaag on 29.10.2010 and reached Ajmer on 31.10.2010, where they spent a night at Hotel Khwaja. The next day on 01.11.2010, in the afternoon at around 03:00 p.m., they had reached Abu Road. Two people met them, who introduced themselves as Kayyum and Imran. Hilal Ahmed further stated that from the talk of Kayyum, Mustak and Imran, he could know that Kayyum and Imran would take 5 kg of charas for delivering the same to Shahnawaz and he and Mustaq would go forward to Ankleshwar. It was Kayyum who drove the vehicle from Abu Road to Ahmedabad when they went via Mehsana and at that Page 114 of 129 R/CR.A/1213/2014 JUDGMENT stage the car was intercepted and from the cavity the charas had been found. He also admitted that because he was in a dire need of money and was being paid Rs.10,000/­ he has chosen to carry the charas. His arrest has been effected on 02.11.2010 by intelligence officer, Shri Nishant Shrivastava, as can be made out from the arrest memo prepared. 38.2 Prior to his arrest, statement under Section 67 has been given under the N.D.P.S.Act. On having received this summons under Section 67 of the N.D.P.S.Act which has his signature, the statement has been recorded by the officer concerned. 39. It is also necessary to regard Mustak Ahmed's statement under Section 67 of the N.D.P.S.Act. Mustak Ahmed Mahemud Mohammad Sadik, the resident of District Anantnaag also had been issued the summons under Section 67 of the N.D.P.S. Act on 02.11.2010 and he has chosen to give statement Page 115 of 129 R/CR.A/1213/2014 JUDGMENT before he was arrested. On the very day, by an arrest memo dated 02.11.2010 at 03:00 p.m. for his alleged involvement and conspiracy, procurement and transportation of 11.915 kg of material suspected to be charas seized under the panchnama. 39.1 This convict has also given the very details which had been revealed by Haji Hilal. He was to be paid per trip Rs.20,000/­ and as he was in need of money therefore, he had agreed. Gul Mohammad Jargaar @ Gul Jamadar is the one, who is the supplier and resident of District Anantnaag aged 68 years. It was Gul Mohammad, who had asked him to take Hilal with him, who was to get Rs.10,000/­. Entire detail narrated in the statement of Hilal Ahmed, has been reiterated by Mustaq which vindicates the trails of charas from Anantnaag to Ahmedabd. 40. Likewise, the other accused also have given statements under Section 67 of the Page 116 of 129 R/CR.A/1213/2014 JUDGMENT N.D.P.S.Act. Their statements need not be reproduced. Suffice to note from those statements recorded prior to their arrest under Section 67 of the N.D.P.S.Act after they have been summoned by the officer concerned, the Court notices that they all are collectively involved in hatching conspiracy of supplying and transporting of charas from Kashmir to Gujarat. The law on the subject is amply clear, and procedurality to be adopted before recording the statements have been also duly followed and from nowhere in the documentary evidence, it can be culled out that any force or coercion is used for recording the statements. It is also to be noticed that for a protracted time, there was no retraction on the part of the convicts. They were not in police custody when these were recorded and the Court below has not solely depended on these statements to convict the accused. 41. The report under Section 57 of the N.D.P.S.Act dated 03.11.2010 also duly proved. It Page 117 of 129 R/CR.A/1213/2014 JUDGMENT is prepared by Mr.Kamleshbhai Parate, Intelligence Officer revealing that the specific intelligence received by the N.C.B. Office, Ahmedabad that Gul Mohammad Jargaar @ Gul Jamadar of residence of Bijbehara, Jammu & Kashmir had dispatched consignment of 12 kg charas to his trusted person, namely Mustak and Hilaal Gani in Car No.DL 6 CA 7754. The consignment is to be delivered to one Shahnavazkhan of Shahpur, Ahmedabad and Hafiz of Ankleshwar. Shahnavazkhan sent his associate namely Abdul Kaiyyum and another person to Abu Road, who were arrived at Ahmedabad at around 20:00 hours in Naroda Patiya in the said vehicle and as per their arrangement they were to get down with 5 kg charas and Mustak would proceed to Ankleshwar for delivering 7 Kg of charas to Hafiz of Ankleshwar. 42. The report further submits that a team of officers of N.C.B. kept a watch along with two independent panchas for intercepting the vehicle and the vehicle at around 7:30 p.m was noted Page 118 of 129 R/CR.A/1213/2014 JUDGMENT coming towards Naroda Patiya, the same when was intercepted they found the occupants of the car where the one on the driver sit was Abdul Kayyum while the person sitting beside the driver was Imran Pathan, while the person sitting in rear side of the driver discloses their names as Mustak and Hilal Ganie. After confirmation of the registration number of the vehicle with the information received by N.C.B. through the search of the vehicle carried out in presence of two panchas they found eight packets concealed in a specially made cavity in the dickie of the car. The small piece of substance from one of these packets was tested by the Drug Testing Kit, which tested positive for charas. Thereafter, the occupants of the car were taken to N.C.B. Office, Ahmedabad for further panchnama proceedings and total 11.915 kg of net charas was found on weighing of the eight packets, which were sealed and seized under the N.D.P.S.Act along with the car, other documents and articles. He has further reported that the summons had been issued to all Page 119 of 129 R/CR.A/1213/2014 JUDGMENT the persons namely Mustak Ahmed, Abdul Kayyum, Hilal and Imran Pathan and they were produced before the Court of learned Chief Metropolitan Magistrate, Gheekantha, Ahmedabad and they were ordered to be lodged in the central jail. This report is duly proved in the deposition of the intelligence officer. CONCLUSION: 43. It can be thus seen from the evidence of the witnesses, whose oral depositions have weighed with the Trial Court in believing the version of the prosecution case are also substantiated by the documentary evidence. The procedural requirement of the NDPS Act has been duly followed at every stage, and therefore, it can be unhesitantly said and held that the judgment of the Trial Court is not based merely on the statements given under Section 67 of the NDPS Act. Even otherwise, the law on the subject is amply clear that the statement can be relied upon if the summons as required is already issued Page 120 of 129 R/CR.A/1213/2014 JUDGMENT prior to the arrest of the person/suspect if he has voluntarily chosen to disclose before the officer the details. The corroborative value of this statement cannot be underestimated. As can be very clearly seen from the record that after interception of the car and on seizure of the article which on preliminary examination is found to be charas, occupants of car in which this material had been found, during the inquiry, have chosen to reveal the details of the beginning of procurement, the handing over of the material and the conspiracy of commission of crime, etc. there is no reason why these statements are not to be believed. 44. This Court further notices that soon after the arrest on the very same day in case of some and the next day in case of others when the convicts were produced before the concerned Court, they have not complained of any forcible extraction of these statements. The Court has also not found any dubious or suspicious Page 121 of 129 R/CR.A/1213/2014 JUDGMENT circumstance to hold against the N.C.B., in such circumstances, if the Trial Court concerned has relied on the statements, no fault can be found. The court finds and holds that the findings of the trial court that the accused were in conscious possession of the muddamal also deserve to be upheld. 45. It is also to be noted that the muddamaal had been sent to C.R.C.L. for the examination. The evidence which has been laid before the Trial Court is that after the interception of the vehicle near Naroda Patiya in presence of the panch witnesses, the panchnama of the vehicle and the seizure of the muddamaal article has been completed and the muddamaal had been kept in the N.C.B. godown. The custody of which is with the Superintendent of N.C.B. The seal which had been placed by the officer at the time of seizure and seizure which had been found at the C.R.C.L. matched completely. The C.R.C.L. had been sent eight packets from A­1 to H­1. Discretion of seal Page 122 of 129 R/CR.A/1213/2014 JUDGMENT is Narcotic Control Bureau, AZU, for one on each samples of 8.25 grams. The report of C.R.C.L. dated 02.12.2010 states thus: “Packing Details: Received eight paper packets marked as A1, B1, C1,D1, E1, F1, G1, H1 respectively in sealed and intact condition. Each of the eight sample packet was sealed with one lac seal. Impression of each seal affixed on sample packets tailed with the facsimile of seal as given on test memo. At the time of taking out samples from strong room for analysis, sample packets marked as A1, B1, C1,D1, E1, F1, G1, H1 respectively was in sealed and intact condition. Impression of each seal affixed on sample packets tailed with the facsimile of seal as given on test memo. Report:(Report is admissible under Section 293 Cr.P.C.1973) Each of the eight samples is in the form of greenish brown coloured lumps having fugal growth on the outer surface. On the basis of microscopic, chemical and chromatographic examinations, it is concluded that each of the eight samples answers positive test for tetrahydrocannabinol (charas). The content of tetrahydrocannabinol and Gross weight of remnant samples, returned herewith are as under:­ CLD NO. Marked as % of THC Gross weight of remnant samples with auto pressed plastic pouch 302(N) A 1 17.7 20.3 gm 303(N) B 1 14.6 20.5 gm 304(N) C 1 17.1 20.0 gm 305(N) D 1 16.6 20.1 gm 306(N) E 1 13.5 20.3 gm Page 123 of 129 R/CR.A/1213/2014 JUDGMENT 307(N) F 1 14.4 20.2 gm 308(N) G1 14.8 20.5 gm 309(N) H1 15 20.8 gm The outward letter, exhibit­29 provides the details of the muddamal samples and the report of which is exhibit­71. All the eight samples were found by the C.R.C.L. in sealed and intact condition. The seal on the muddamal article tallied with the facsimile seal and the report is of tetrahydrocannabinol ('the THC' hereinafter) being positive. in other words, the entire muddamal article is of charas and every packet of samples sent for examination has contained 'charas'. On having found the contraband article from the accused the provision of presumption under Sections 35 & 54 of the NDPS Act will come in to play against these persons. It is also to be noted that CRCL in its report had shown different percentage of the THC, the Court below has also rightly held that the gross weight of charas if is considered, it is a commercial quantity. Page 124 of 129 R/CR.A/1213/2014 JUDGMENT 46. It is vital at this stage to also make a specific mention that in the further statement of the appellants (accused) under Section 313 of the Code of Criminal Procedure, exhaustively, the Court has queried each of them and the standard reply which has come from each of the accused is that the evidence is false. They have denied of having seized any contraband article from them. The stand is also taken by the accused that the samples had not been sent to any laboratory and at the N.C.B. office only, the examination of muddamal article has been done and they have been falsely involved. All their statements under Section 67 of the NDPS Act, they have denied of giving any statement and also stated that the same has been retracted. While discussing the evidence, this Court has noted that there had no captioned on the part of the accused. 47. All the accused have been charged under Section 8 (C) read with Sections 20(b)(ii)(C) of the NDPS Act. Apt would be refer to Section 8(C) Page 125 of 129 R/CR.A/1213/2014 JUDGMENT and Section 20(b) at this stage. “8. Prohibition of certain operations.­No person shall­ 8(c). produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter­State, export inter­State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purpose and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case, where any such provision, imposes any requirement b way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession use, consumption, purchase, sale, transport, warehousing, import inter­State and export inter­State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: [Provided further that nothing in this section shall apply to the export of poppy straw for decorative purpose.] (3) Punishment for contravention in relation to cannnabis plant and cannabis.­Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder,­ 20(b). Produces, manufactures, possesses, sells, purchases, transports, imports inter­State, exports inter­ State or uses cannabis, shall be punishable­ [(I) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and Page 126 of 129 R/CR.A/1213/2014 JUDGMENT (ii) where such contravention relates to sub­clause(b),­ (A) and involves small quantity, with rigorous imprisonment for a term which may extend to [one year], or with fine, which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity, but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with the fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.] 48. As held & observed by the Apex Court in case of Union of India vs. Kuldeep Singh any offence relating to narcotic drugs or psychotropic substances is far more graver than a culpable homicide as the former causes very serious impact on the society whereas the later affects only an individual. Moreover, it also takes a toll of the economy of the country. The Court has chosen to award the punishment under Section 8(c) read with Sections 20(b)(ii)(C) read with Section 29 of the NDPS Act. The Court instead of 20 years has punished each of them ten years and fine of Page 127 of 129 R/CR.A/1213/2014 JUDGMENT Rs.1,00,000/­ (Rupees One Lakh Only). The State has not preferred any appeal for enhancement. In the event, the appeal preferred by the accused against the conviction and sentence recorded by the Sessions Court deserves to be dismissed, shall be entitled to the set of as per Section 428 of the Code of Criminal Procedure. 49. In the backdrop of the aforesaid analysis, findings and observations, the appeals fail and are accordingly dismissed. The judgment and order of the Trial Court dated 29.01.2014 passed in Sessions Case No.180 of 2011 by the learned Additional City Sessions Judge, Court No.11, Ahmedabad stands confirmed. Bail bonds of the accused, if any, stands discharged. Record and Proceedings shall be sent back to the concerned trial court. 50. Criminal Appeal No.849 of 2015 is dismissed for want of prosecution. Nonbailable warrant against the convict No.1 Mustaq Ahmad Mohammad Sadiq shall be issued in Criminal Appeal No.849 of 2015. Once the convict is arrested, he shall be permitted to once again prefer the appeal on merits. Page 128 of 129 R/CR.A/1213/2014 JUDGMENT 51. All miscellaneous applications arising out of these appeals stand disposed of accordingly. Sd/­ (MS SONIA GOKANI, J) M.M.MIRZA Page 129 of 129 "