JUDGMENT
Kumar Rajaratnam, C.J.
1. This is an appeal preferred by accused/appellant against judgment of conviction and sentence dated 18-9-2001 passed by Special Judge, N.D.P.S. Act, Narsinghpur in Special Case No. 9 of 2001. The accused has been found guilty by the Special Judge, N.D.P.S., Narsinghpur under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act of 1985) for being found in possession of 50 grams of opium and has been sentenced to undergo 10 years’ RI and to pay fine of Rs. 1,00,000.00, in default, to further undergo two years’ RI. The cash amount of Rs. 20.00 seized from the accused has been directed to be confiscated.
2. The accused was found in possession of 50 grams of opium. According to Shri Ajay Mishra, learned Deputy Advcoate General for State, it is valued approximately at Rs. 1000.00. Heard Shri Jagdish Tiwari, learned Senior Counsel for the accused and Shri Ajay Mishra, learned Deputy Advocate General for the State and perused the English translations of the judgment and the evidence submitted by the learned Deputy Advocate General.
3. The prosecution case briefly is that P.W. 13 was the Station House Officer of Narsinghpur Police Station at the relevant time. He received information from a Police informer at 6.10 p.m. on 7-3-2001 that the accused was standing in front of Harihar Talkies, Kandeli for the purpose of selling opium. Investigating Officer (I.O.) (P.W. 13) prepared information memo (Ex. P-14) in the presence of independent witness P.W. 5 and Police Constable (P.W. 6). He recorded the information in the Station Diary and communicated it to his superior officer Additional Superintendent of Police as per communication (Ex. P-27).
4. Thereafter, I.O. (P.W. 13) proceeded to the place and found that the accused was standing near a temple in front of the Harihar Talkies. I.O. (P.W. 13) called two independent witnesses P.W, 2 and P.W. 3 and surrounded the accused. The accused was informed that he may be in possession of opium. I.O. (5-W. 13) also informed the accused that if he so wished, his search could be conducted in presence of a gazetted officer or a Magistrate. The accused opted for search in the presence of the Magistrate. The consent memo (Ex. P-5) was prepared. Immediately thereafter, a requisition was sent to Tehsildar (P.W. 1) and Executive Magistrate, Narsinghpur. On request, P.W. 1 arrived and obtained the consent of the accused to search him. In the presence of P.W. 1, I.O. (P.W. 13) conducted the search. A poly bag containing black substance was recovered from the right hand pocket of the pant (trouser) of the accused. Accordingly, search memo (Ex. P-3) was prepared. I.O. (P.W. 13) smelt and tasted the contraband and identified it as opium.
5. Weighing machine was procured from a shop keeper Halke Prasad Kahar (P.W. 4), a ground-nut vendor. The substance was weighed and it was found that the weight of the substance was 50 grams. A memo (Ex. P-4) was prepared. Two separate packets of this substance each weighing 10 grams were prepared and all the three packets were seized. A sum of Rs. 20.00 (two currency notes of Rs. 10.00 each) in cash was also recovered from the pocket of accused and the same was seized. The accused was arrested and the factum of arrest of the accused was intimated to the accused’s father. The seized articles were handed over to the Head Constable (P.W. 10) who was incharge of the Malkhana for being kept in safe custody. Intimation to this effect was also sent to the Superintendent of Police.
6. The arrest of the accused was on 7-3-2001 and according to I.O. (P.W. 13), on 22-3-2001, a sample of opium was sent through a Constable Bharat Singh (not examined). Report from FSL, Sagar was received as per Ex. P-35 which indicated that the sample consisted of opium containing 3.02% of morphine. On the basis of these materials, Investigating Officer (P.W. 13) laid charge-sheet against the accused in Court on 22-3-2001. The accused was examined under Section 313, Code of Criminal Procedure. The accused claimed that he was innocent and was falsely implicated in the offence.
7. I have before me the evidence of I.O. (P.W. 13). He states that in the presence of Magistrate (P.W. 1), he searched the accused and found in his right side pocket of the pant certain substance which looked like opium. In the presence of the Magistrate (P.W. 1), he conducted the search. Search Panchnama is Ex. P-3. Thereafter, he called a person (P.W. 4) who was selling ground-nuts near the place and was having a weighing machine. With the help of weighing machine of P.W. 4, he found that the total quantity of the substance seized from the accused was 50 grams. Panchnama Exhibit P.W. 4 was prepared. P.W. 2 and P.W. 3, the Panch witnesses were also present.
8. Curiously, I.O. (P.W. 13) talks about taking of two samples, each
containing 10 grams. They were sealed as per procedure. The two packets were
marked as A-1 and A-2. I.O. (P.W. 13) does not, in his evidence, speak about
the third packet, which presumably is of 30 grams. I shall ignore the fact that
I.O. (P.W. 13) does not speak about the fact that there was a third packet of
30 grams which was also scaled by the I.O. I have perused the Panchnama (Ex.
P-9) and it indicates that there were three packets, two of 10 grams each and
one packet of 30 grams.
9. According to evidence of I.O. (P.W. 13) in Paragraph 10, the seized articles were deposited in the Malkhana as per Ex. P-32. In Paragraph 12 of the evidence of P.W. 13, he has staled that on 16-3-2001, the seized substance of 24 grams was sent to FSL, Sagar, through Police Constable Bharat Singh (not examined) as per Ex. P-34, dated 16-3-2001. This appears to be strange. If the evidence of I.O. (P.W. 13) is believed, it appears that on 16-3-2001, there was inter-meddling of seized contraband by I.O. (P.W. 13). Ex. P-34 also appears to support the case that I.O. (P.W. 13), without any authority of law and without the panch witnesses and without the accused being present, had broken the seals of the packets and sent 24 grams of the substance kept in the Malkhana on 16-3-2001. Paragraph 12 of the evidence of the I.O. reads as follows :–
12- fnukad 16&3&2001 dks tIr lqnk vQhe
dks 24 xzke vkj{kd Hkjr flag ds ek/;e ls foKku iz;ksx’kkyk lkxj Hkstk FkkA ftldk
Mªk¶V Ø- ih- ih-@uj-@3@2001 fnukad 16&3&2001 tks fd izn’kZ ih- 34 gSA
Ex. P-34, which is a crucial document, reads as follows :–
dk;kZy; iqfyl v/kh{kd] ujflagiqj]
e-iz-
Ø-
ihih@ujiqj@3@2001
fnukad 16&3&2001
izfr]
lapkyd
fof/k foKku iz;ksx’kkyk
lkxj] e-iz-
fo”k; % Fkkuk ujflagiqj ds vi- Ø- 1061@/kkjk
18 ,u-Mh-ih-,l- ,DV esa tIrlqnk vQhe dk ijh{k.k dj vfHker nsus ckcrA
lUnHkZ % vkids i= Ø- ,Q-,l-,y-@jlk;u@86@2001
fnukad 19&3&2001 ds ifjikyu esaA
ekeys dk laf{kIr fooj.k bl izdkj gS fd fnukad
7&3&2001 dks eq[kfcj dh lwpuk ij vkjksih vkuan firk Hkokuh izlkn cSjkxh
mez 32 lky fdlkuh okMZ ukflagiqj ds dCts ls 50 xzke eknd inkFkZ vQhe tIr dh xbZ
gSA
mä izdj.k esa vijk/k lnj dk;e dj foospuk esa
fy;k x;kA foospuk ds nkSjku mä lkexzh uewus ds rkSj ij 24 xzke vQhe lhycan dj
ekdZ ,&1 fn;k tkdj lhycan iSdsV esa }kjk vkj- Hkjrflag Ø- 71 ds vkids ikl
Hkstk tk jgk gSA
Ñi;k jklk;fud ijh{k.k dj vfHker nsus dk
d”V djsa fd D;k tIrlqnk vQhe eknd inkFkZ gh gS ;k ughaA
Ø-
tIr lqnk lkexzh
dk fooj.k
fnukad tIrh
fdlls tIr
ekdZ
1-
,d lhycan iSdsV
esa 24 xzke eknd inkFkZ vQhe
7&3&2001
Vkjksih vkuan
,&ou
¼,&1½
iqfyl v/kh{kd
ujflagiqj
izfrfyfi % uxj fujh{kd] Fkkuk ujflagiqj dks
lwpukFkZA
iqfyl v/kh{kd
ujflagiqj
layXu i= &
1- tIrh i= & ,d]
2- lhy uewyk & ,d
On the point as to whether there was inter-meddling or tampering of the seized articles, I have also before me the further evidence of I.O. (P.W. 13). In cross-examination, he again reiterates that on 16-3-2001, a packet containing 24 grams opium was sent to FSL, Sagar. His evidence in Paragraph 16 reads as follows :–
16- ;g lgh gS fd 16&3&2001 dks 24 xzke
vQhe dk iSdsV fof/k foKku iz;ksx’kkyk] lkxj Hkstk x;k FkkA vc lk{kh us Lo;a
crk;k fd igys lSEiy vYdkyk;M QSDVjh uhep Hksts x;s ogka ls fcuk ijh{k.k okfil
vk;s rc 16 rkjh[k dks mu iSdsVksa dks fof/k foKku iz;ksx’kkyk lkxj Hkstk x;k rks
ogka ls Hkh okfil vk x;s D;ksafd ek=k de gksus ls 22&3&2001 ds igys vk
x;k FkkA 22&3&2001 dks ek=k iwjh djus ds fy, iapukek cuk;k x;k FkkA
lk{kh ls ;g iwNs tkus ij fd igyk Mªk¶V eky
iz;ksx’kkyk Hkstus gsrq fdl fnukad dks rS;kj fd;k x;k] lk{kh us O;ä fd;k fd
mUgsa dkxtkr fn[kuk gS] Mk;jh esa bldk mYys[k ugha fey jgk gSA ,slh voLFkk esa
lk{kh }kjk le; pkgus ij mldk izfrijh{k.k vkt dy rd ds fy, LFkfxr fd;k x;kA
10. Learned Deputy Advocate General strenuously submitted that no seal was inter-meddled or broken on 16-3-2001 since the evidence of the Investigating Officer docs not appear to be accurate. Learned Deputy Advocate General fairly submitted that if there was any breaking of the seal or inter-meddling of the substance on 16-3-2001, which was sealed on 7-3-2001, the accused should be entitled to the benefit of doubt.
11. But it was contended by him vehemently that there was a mistake in the evidence in chief and the evidence in cross-examination. When specific question was posed as to the Ex. P-34, he submitted that although Ex. P-34 is dated 16-3-2001, reference in Ex. P-34 is with regard to letter of FSL, Sagar dated 19-3-2001 and, therefore, this date in the letter showing 16-3-2001 must have been a typographical error. In a grave offence like this which the accused is facing, it can not be said that the date in Ex. P-34 as 16-3-2001 is a mere typographical error. Ex, P-34 has to be read with the evidence of the Investigating Officer at Paragraph 12 extracted above, which clearly indicates that on 16-3-2001, 24 grams of opium was sent to FSL, Sagar through Police Constable Bharat Singh as per Ex. P-34. This also has to be read with Paragraph 16 of the evidence of I.O. (P.W. 13), which is extracted in the earlier part of the judgment and this indicates that 24 grams of opium was sent to FSL, Sagar on 16-3-2001. I.O. (P.W. 13) further states that on 16-3-2001, packets were sent to the FSL, Sagar and they were returned because of lesser quantity. All this evidence and Ex. P-34 can not be brushed aside as a mere typographical error and can not be ignored in a case of such gravity.
11-A. It is submitted by learned Counsel for the accused that it can not be ruled out that the entire preparation took place on 16-3-2001. Contention that it was prepared on 22-3-2001 and sent to FSL, Sagar can not be accepted in view of the fact that no iota of document sent from the FSL, Sagar has been exhibited by the prosecution.
12. The learned Deputy Advocate General appearing for the State vehemently submitted that nothing happened on 16-3-2001. He further submitted that on 7-3-2001, the contraband was divided into three packets, namely two packets of 10 grams each and one packet of 30 grams. The same were sealed and one packet containing 10 grams of opium marked as ‘A-1’ was sent to Neemuch on 8-3-2001 through Constable Ajay Sharma (not examined) which was returned without examination and then the same packet was sent to FSL, Sagar through Constable Laxmi (not examined) and the FSL, Sagar came to the conclusion that quantity sent was insufficient and returned the sample. According to the learned Deputy Advocate General, after the sample was received back from the FSL, Sagar, nothing happened and it was only on 22-3-2001, all the three packets were opened although in the absence of the accused but in the presence of the panch witnesses and they were re-weighed and were divided in two packets of 24 grams and 26 grams. The packet of 24 grams of opium was sent once again to FSL, Sagar. It was further submitted that even on 22-3-2001, it was not necessary to seek permission of the Superintendent of Police or the Magistrate and the presence of the accused was not necessary since the panch witnesses were present.
13. When a specific question was posed to the Deputy Advocate General that the evidence of I.O. (P.W. 13) clearly indicates that there was opening of the samples on 16-3-2001, it was submitted by him that I.O. (P.W. 13) was confused and, therefore, the statement of P.W. 13 has to be ignored with respect to the opening of the samples on 16-3-2001.
14. The whole case can safely be divided into three parts.
15. The first part is what happened on 7-3-2001. There can be no dispute that on 7-3-2001, the Investigating Officer has acted strictly in accordance with law. He had summoned the Executive Magistrate (P.W. 1) and conducted the search in his presence. The Panch Witnesses (P.Ws. 2 and 3) were present at the time of search. The seizure of contraband took place in (he presence of the accused. The contraband was divided into three packets –10, 10 and 30 grams. I.O. (P.W. 13) himself weighed the contraband and panchnama (Ex. P-8) was prepared. Spot map was prepared vide Ex. P-11. Three packets of seized articles were scaled and the sample of the seal was also taken on paper. The seized articles were deposited in the same night in the Malkhana and receipt was obtained as per Ex. P-32. It appears to me that there is nothing wrong in the procedure followed by the I.O. with regard to the first incident on 7-3-2001. Everything was done in the presence of the accused and in the presence of panch witnesses.
16. The second part of the case is what happened on 16-3-2001. Ex. P-34 read with the evidence of the I,O. (P.W. 13) clearly indicates that on 16-3-2001, 24 grams of the seized article was sent to FSL, Sagar through Police Constable Bharat Singh (not examined). That is the categorical statement of I.O. in Paragraph 12 in his evidence quoted above. This vital contradiction was never sought to be explained subsequently in the examination-in-chief or in the re-examination. The evidence in Paragraph 12 that on 16-3-2001, 24 grams opium was sent to FSL, Sagar as per Ex. P-34 is further reiterated in cross-examination in Paragraph 16. It is stated in Paragraph 16 of the cross-examination of I.O. (P.W. 13) that on 16-3-2001, a packet containing 24 grams of opium was sent to FSL, Sagar. I.O. (P.W. 13) further says that this sample was first sent to Neemuch and the same was returned without examination and therefore, on 16-3-2001 the packet was sent to FSL, Sagar but it was returned due to less quantity.
17. If Paragraphs 12 and 16 of the evidence of I.O. (P.W. 13) and Ex. P-34 are read together, there can be no doubt that the original seals of seized articles of 10, 10 and 30 grams were interfered with on 16-3-2001 when it was converted into 24 and 26 grams and packet of 24 grams of opium was sent first to Neemuch and later to Sagar. I.O. (P.W. 13) further clearly states that on 16-3-2001, the packet which was sent to Sagar was returned because of insufficient quantity. From this, it is clear that something happened on 16-3-2001 when neither the accused nor the panch witnesses were present. The least that was expected on 16-3-2001 was to ensure the presence of the accused. On 7-3-2001, when the article seized was divided into three packets (10, 10 and 30 grams) and seals were affixed, the accused attested the Panchnama as per Ex. P-8. Perusal of Ex. P-8, prepared at the time of arrest shows the signature of the accused, the panch witnesses and the I.O. (P.W. 13). If the packets were interfered on 16-3-2001, as stated by the I.O., it was done behind the back of the accused.
18. Now, I come to the third part of the prosecution case, namely on 22-3-2001. According to the I.O. (P.W. 13), on 22-3-2001, he had already received from the Laboratory the original sample of 10 grams and according to him, he had to re-do the weighing and packing and he opened the seal, put all the contraband substance together and divided it into two packets of 24 grams and 26 grams. According to I.O. (P.W. 13), on 24-3-2001, packet of 24 grams of opium was once again sent to FSL, Sagar. I.O. (P.W. 13) also states that this was done in the presence of the original panch witnesses (P. Ws. 2 and 3). On the sample being sent to the FSL, Sagar, it was examined by the FSL, Sagar and Ex. P-35 was marked to show that the substance of 24 grams sent was found to be opium.
19. When a specific question was posed, to the learned Deputy Advocate General whether any letters from the Laboratory with regard to packet of 10 grams being rejected as being insufficient in quantity was received, learned Counsel fairly submitted that no letter was received from the Laboratory. The only letter received from the Laboratory is Ex. P-35. Even in Ex. P-35, the quantity of sample is not mentioned. Evidence of the prosecution with regard to what happened on 16-3-2001 and on 22-3-2001 is contradictory. However, even according to the prosecution, the accused was not present when the seals were admittedly opened on 16-3-2001 and on 22-3-2001. No letter from the FSL, Sagar has been produced with regard to what happened to the original 10 grams of opium seized and sent to the FSL, Sagar. Even in Ex. P-35, which has been relied by the prosecution, neither quantity is mentioned nor the reference is made with regard to the sample sent on 22-3-2001. Ex. P-35 makes reference to letter dated 16-3-2001. No witness from the FSL, Sagar has been examined to clarify whether the original sample of 10 grams was sent back without opening the seal. It is not possible to assume that the seal was un-opencd at Sagar with regard to 10 grams unless there is a covering letter from the FSL, Sagar saying that the parcel was sent back with the seal intact. Even according to the prosecution, when the samples were opened on 22-3-2001, the accused was admittedly not present.
20. The prosecution has not examined the Police Constables through whom the samples arc stated to have been sent to the Laboratories from time to time. According to the prosecution, first the sample was sent to Neemuch on 8-3-2001 through Constable Ajay Sharma but it was received back without examination. Then the sample was sent to FSL, Sagar on first occasion through Constable Laxmi hut the same was received back without examination on the ground that the quantity of sample was insufficient. Thereafter, the sample is said to have been sent on 22-3-2001 through Constable Bharat Singh. None of these persons has been examined by the prosecution. This was essential to ensure that there was no tampering between the dispatch of sample through the Constable and delivery of the same to the Laboratory. It was incumbent upon the prosecution to prove that the seals put on the sample remained intact till the sample reached the hands of the Chemical Examiner. Not even the letter of the FSL, Sagar has been marked in Court.
21. The I.O. (P.W. 13) has been inter-meddling with the seals as admitted by him, on 16-3-2001 and on 22-3-2001 in the absence of the accused. When such a glaring admission is there by the I.O. (P.W. 13), as extracted by me earlier, it is not known how the learned Trial Court did not analyse the case with regard to the occurrence on 16-3-2001 and 22-3-2001. The evidence of the I.O. (P.W. 13) in this case indicates that he took solely upon himself the exercise of opening the sealed samples on 16-3-2001 without any authority of law. No permission was sought for from the Magistrate to break open the seal and the whole exercise was done suo motu by him. There is no letter sent from the FSL, Sagar saying that the sample sent for was of insufficient quantity. No person was present when the seal was broken, as admitted by him. The letter from the FSL would have shown why the sample was not sufficient. It was highly improper on the part of Investigating Officer to have broken the seals on his own on 16-3-2001.
Even on 22-3-2001, the same exercise was done in the absence of the accused. Why the seal was once again tampered with on 22-3-2001 is not forthcoming except the statement that the sample was insufficient. The only letter sent by FSL, Sagar is Ex. P-35 which speaks about the letter dated 16-3-2001. Whether the sample was sent on 16-3-2001 or 22-3-2001 is not at all clear in a case of this magnitude. One thing is clear that on both the occasions, the seals were broken and the samples were re-adjusted by the I.O. in the absence of the accused. Ex. P-35 does not make any reference to the sample sent on 22-3-2001. It only refers to letter dated 16-3-2001 and refers that the sample was received on 23-3-2001 through Constable Bharat Singh. So it appears that there is no letter from the FSL to illustrate that any sample was sent on 22-3-2001. If that be so, the only sample that the FSL refers in Ex. P-35 is the sample sent on 16-3-2001 and received by the FSL on 23-3-2001. Even in Ex. P-35, the quantity of the sample is not at all mentioned and there is no evidence on record from the FSL, Sagar as to what happened with respect to original sample of 10 grams, which was sent to Neemuch and Sagar. It appears to me that the samples were being sent up and down without any regard to the sanctity of law. Seals had been broken atleast twice by the Investigating Officer on 16-3-2001 and 22-3-2001 without informing his superiors or the learned Magistrate and in the absence of the accused.
Even assuming everything in favour of the prosecution, no quantity is mentioned in Ex. P-35 and more than anything else, why the sample was kept in the Laboratory till 4-5-2001 (as can be seen in Ex. P-35) is not known (report of the FSL, Sagar is of 4-5-2001). There is no material whatsoever to indicate that the original sample was not sufficient for analysis exept the statement of the I.O. (P. W. 13). The least that was expected in the case of this gravity was to produce the letter of the FSL, which returned the original sample. Even that is not forthcoming.
The Supreme Court in case of Valsala v. State of Kerala (1993 SOL Case No. 252) pronounced that there should be sufficient proof that the articles seized have been kept in proper custody and proper form so that the Court can be sure that what was seized only was sent to Chemical Examiner. The Supreme Court further held that when there is a big gap and an important missing link, the accused should be entitled to benefit of doubt. The observations of the Supreme Court made in the case equally applies to the case on hand. The Supreme Court pronounced :–
‘…… We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officer is highly discrepant and unconvincing and does not throw much light. Therefore, the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to the Chemical Examiner. Though this is purely a question of fact but this is an important link…… No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the Courts can not convict.’
(Emphasis by the Court)
22. The Supreme Court in many of its pronouncements, has cautioned Courts that the N.D.P.S. Act has stringent punishment and the proof of guilt must be clear and cogent. Section 55 of the Act prescribes the method by which seized articles should be kept in safe custody. Section 55 of the Act reads as follows :–
“55. Police to take charge of articles seized and delivered.– An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, 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 officer-in-charge of the police station.”
It is not necessary to give a finding whether Section 55 of the Act is mandatory or directory. Even assuming it to be directory, the minimum that is required would be that when samples are inter-meddled by the Investigating Officer, for whatever reasons, the presence of the accused is necessary. This is particularly so when the original samples were sealed in accordance with Section 55 of the Act in the presence of the accused. In this case, admittedly the samples were inter-meddled with both on 16-3-2001 as well as on 22-3-2001 as admitted by the I.O. (P.W. 13), without following any procedure and in the absence of the accused. This, I feel, is a minimum requirement to give sanctity to the meaning of Section 55 of the Act. The evidence of I.O. (P.W. 13) clearly indicates that the original samples were re-adjusted and the seals were broken without authority of law twice. For all these reasons, the benefit of doubt must go to the accused.
23. Consequently, appeal is allowed. Judgment of conviction and sentence passed by the Special Judge, Narsinghpur in Special Case No. 9 of 2001, dated 18-9-2001 is set aside and the accused/appellant is acquitted of the offence punishable under Section 18 of the Act. He be set at liberty forthwith, if not wanted in any other case. Cash amount of Rs. 20.00 recovered and seized from the accused on 7-3-2001 be returned to him and the fine amount, if paid, be refunded to the accused by the Trial Court.