JUDGMENT
K.S. Kumaran, J.
1. The three appellants (1) Jarnail Singh, (2) Mohan Krishan, and (3) Prithavi Raj were convicted by the Additional Sessions Judge, Ambala on a charge under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act), in Sessions Case No. 15 of 1994, aggrieved by which they have come on appeal.
2. The case of the prosecution as seen from the F.I.R. is as follows :-
3. On 20-2-1992, Mehar Singh, the S.I./ S.H.O. of Police Station, Mullana along with Head Constables Om Parkash, Rameshwar Prasad, Attar Singh and Constables – Randhir Singh, Charan Singh and Bhim Singh was going towards Dhanora in a Government jeep in connection with patrolling. On the way, Mohinder Singh Ahlawat, Superintendent of Poice along with his staff met them. S.H.O.-Mehar Singh along with officials started checking the vehicles at about 8 p.m. after holding a naka bandi on the turning of Village Dhanora. Ranjor Singh, Lamberdar resident of Barada met them by chance and was talking to the S.H.O. At that time, a tanker bearing No. URM-2092 came from the side of Sadhaura. The S.H.O. gave signal to stop, but the speed of the tanker was increased. On the basis of suspicion, it was stopped with the help of the accompanying officials. Three persons were sitting in the front side of the tanker, which was being driven by accused-Mohan Krishan, while accused – Jarnail /Singh and Prithavi Raj were sitting there.
4. On interrogation, the search of the above-said tanker was conducted in the presence of witnesses and M.S. Ahlawat, Superintendent of Police. On the opening of the lid of the tanker and checking a lot of gunny bags were found lying in the middle chamber from out of which one bag was taken, cut and checked and it was found to contain Chura Post (poppy husk) upon which all the bags were taken out and checked. There were 73 bags in all and on checking, they were found to contain Chura Post. H.C.-Om Parkash brought the scales and weights from Village Dhanora and the bags were weighed separately. Each bag contained 18 kilograms. Two samples containing 250 gms. were taken out and converted into parcels at the spot while the remaining recovered powder of poppy-husk packed in 73 bags was scaled by M.S. Ahlawat, bearing the seal ‘MS’. The seal, after taking the specimen, was handed over to Ranjor Singh, Lamberdar, the witness. The 73 bags and 146 samples of poppy-husk sealed with the seal bearing ‘MS’ together with , the tanker abovesaid were taken into possession , vide separate memos since the accused could not produce any permit to keep 13 quintals and 14 kilograms of powder of poppy husk in their possession.
5. The accused were accordingly charged under Section 15 of the N.D.P.S. Act and were tried by the Additional Sessions Judge, Ambala.
6. The prosecution, in support of its case, examined A.S.I.-Jagir Singh (PW1) who recorded the statement of certain witnesses, M.H.C.-Ratan Lal (PW 2) who recorded the formal F.I.R. (Ex.PA/1) on receipt of the information (Ex.PA) and deposed about the deposit of the material objects, A.S.I.-Parshotam Lal (PW 3) who prepared the charge-sheet under Section 173, Cr.P.C, H.C. Narender Singh (PW 4) who filed his affidavit and stated that M.H.C. Ratan Lal handed over the case property to him with the seals intact, Constable-Ram Singh (PW 5) who also filed his affidavit about having received 73 sealed parcels for depositing them in the Forensic Science Laboratory, Madhuban for examination, and to prove the deposit of those, parcels at the said Laboratory, Ranjor Singh (PW 6), the independent witness, who corroborated the case as put forward by the prosecution, M.S. Ahlawat (PW 7), the S.P. and S.I. /S.H.O.-Mehar Singh (PW8), the I.O. The report from the Forensic Science Laboratory was produced into evidence as Ex.PF. On the basis of the evidence let in and the materials placed before him, the learned Additional Sessions Judge, Ambala convicted the accused under Section 15 of the N.D.P.S. Act and sentenced each of them to rigorous imprisonment for 10 years, to pay a fine of Rs. one lakh each and in default, to further undergo R.I. for 2 years.
7. When the appeal came up for hearing before this Court, the learned counsel for the appellants, among other things, contended that it was not possible to stack the narcotic in the. central chamber of the tanker in question and a demonstration would reveal the same. The appellants also contended that they had filed an application before the trial Court itself for finding out whether these 73 bags of narcotic could have been stacked in the central chamber of the tanker as alleged by the prosecution, but the same was dismissed by the trial Court.
8. After hearing the counsel for both the sides, this Court, by its order dated 17-9-1996, directed the Additional Sessions Judge, Ambala who decided this case, or if he had been transferred, the learned Sessions Judge, Ambala, to summon the tanker in question and the 73 bags of poppy husk allegedly recovered from the said tanker, make an inspection to see whether these 73 bags each containing 18 kilograms of poppy husk could have been kept in the central chamber of the tanker in question or not, by actually stacking them. This Court also directed that before doing, so, the learned Sessions Judge will issue notice to the counsel for both the sides and also if possible, have the presence of the accused and the Investigation Officer. After making the inspection accordingly, the concerned Judge was directed to send his report to this Court. Accordingly, the learned Additional Sessions Judge, Ambala has made the inspection and has sent his report. The counsel for both the sides were once again heard and the records were perused.
9. The report of the learned Additional Sessions Judge shows that he visited the Police Station, Mullana ‘for carrying out the directions of this Court arid at the time of the inspection, the counsel for the accused, the three accused and Mehar Singh, S.H.O., Police Station, Mullana were present. According to this report, the bags allegedly recovered from the accused were lying in the property room, but most of the gunny bags were damaged, while three or four of them were totally damaged and lying outside property room. The report also shows that none of the bags was carrying any seal and the case number thereupon. The poppy husk was found scattered/lying on the floor in good quantity. The poppy husk lying on the floor or the bag totally damaged were put into new bags. Leaving aside the bags containing the poppy husk lying on the floor or sample parcels, 71 bags were weighed straightway . 34 of them were of plastic and the remaining were gunny bags. The total bags containing poppy husk including lying on the floor and sample were 76. Out of total 54 sample parels, 21 of them were intact and bearing the seals. Six sample parcels were bearing the seals but badly damaged. The remaining parcels did not have any sea! and some of them were also badly damaged.
10. The report also shows that the weight of the 76 bags was not uniform but varied from 03.500 kilograms to 20 kilograms. The report further shows that all these bags were weighed in the presence of abovesaid persons and none raised any objection about the weight. According to the report, all the bags were put into the central chamber of the truck (tanker) and the bags were easily put into the same and there was some space still left in the central chamber measuring 16″ in depth, 19″ in length from one side and 25″ from the other side. The report also shows that a person can enter the chamber even when the pipe is inside. The learned Additional Sessions Judge was informed that the pipe of a length of 63″ with a diameter of 17″ was also in the chamber of the tanker at the time of recovery. The report also shows that no objection was raised by anybody at the spot about these facts.
11. Therefore, we find that the 76 bags containing 1095.900 kilograms were easily stacked in the central chamber of the tanker, and there was still space left in the chamber, which could have held two more quintals and odd of poppy husk (since according to the prosecution, 13 quintals and 1 4 kilograms of poppy husk was recovered from the central chamber). Therefore, the contention of the appellants that 73 bags each containing 18 kilograms of poppy husk could not have been stacked in the central chamber of the tanker and, therefore, the case of the prosecution is false, cannot be accepted. (But I will discuss about the other aspect namely, the condition of the bags as found by the learned Additional Sessions Judge and its effect on the prosecution case separately).
12. But the learned counsel for the appellants contended that the provisions of Section 50 of the N.D.P.S. Act have not been complied with and, therefore, the case of the prosecution has to fail on that account alone. Sub-section (1) of Section 50 of the N.D.P.S. Act which is relevant for our purpose, reads as follows:-
50. Conditions under which search of person 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.
13. The learned counsel for the appellants contended that before carrying out the alleged search of the tanker, the Investigation Officer should have made the offer to the accused-appellants that if they so chose they will be produced before the nearest Gazetted Officer or a Magistrate for the purpose of conducting the search, and unless otherwise such an offer is made, the search is illegal for not complying with the provisions of Section 50 of the N.D.P.S. Act. But the learned counsel appearing for the State contended that this is not a case where the S.I./ S.H.O.-Mehar Singh (PW 8) had any advance secret intimation that the appellants were carrying the contraband in the vehicle in question, but on the other hand, while the SI/SHO-Mehar Singh (PW 8) along with the Superintendent of Police-M.S. Ahlawat (PW 7) was doing the checking, he happened by chance to search this vehicle and find the contraband and, therefore, the provisions of Section 50 are not applicable to this case.
14. But the learned counsel for the appellants relied upon the decision of the Hon’ble Supreme Court in Mohinder Kumar v. The State, Panaji, Gao (1995) 2 Rec Cri R 599 : 1995 Cri LJ 2074, in support of his contention. But before referring to the decision of the Hon’ble Supreme Court in detail, I will refer to certain facts of this case on our hand so that we could appreciate whether the decision of the Hon’ble Supreme Court could be applied to the facts of the case on hand. In the F.I.R. itself, it has been mentioned that the S.H.O. Mehar Singh along with his staff was going towards Dhanora in connection with patrolling: He met on his way M.S. Ahlawat, S.P. (Operations) along with his staff. SI/SHO-Mehar Singh (PW 8) along with his staff started checking the vehicles at 8 p.m. The witness-Ranjor Singh (PW 6) also joined them. At that time, the tanker in question came from the side of Sadhaura, but, the speed of the tanker was increased as it came near in spite of the fact that the S.H.O. gave the signal to stop it. On the basis of suspicion, it was stopped with the help of the accompanying officials. Accused-Mohan Krishan was driving the tanker, while others were sitting with him. On interrogation, the search of the tanker was conducted in the presence of the witness and M.S. Ahlawat, S.P. On the opening of the lid of the tanker, lot of gunny bags were found lying in it, out of which one was taken out, checked and found to contain poppy husk. Thereafter all, {hp bags were taken out and checked. There were 73, bags in all.
15. We find that at about 8 p.m. while SI/SHO was checking, the vehicle in question came and tried to speed past in spite of the signal to stop, but was intercepted with the help of the police officials. This was done because of the suspicion. Apart from this suspicion, it was only after interrogation that the tanker was searched. When one of the bags was taken out, it was found to contain poppy husk and it was thereafter only that other 72 bags were taken out.
16. Now I will revert back to the decision of the Hon’ble Supreme Court in Mohinder Kumar’s case 1995 Cri LJ 2074 (supra). The A.S.I, concerned in that case who was on patrolling duty, reached Anjuna Post at Village Vagator. After parking his jeep, he and the police party accompanying him except one Head Constable alighted from the vehicle and reached the house bearing No. 591 at Small Vagator. He noticed two persons sitting in the verandah of that house and as soon as they saw him and the police party,, they hurriedly entered the house. This aroused the suspicion of the Sub-Inspector whereupon he and the police party went to the house and directed the two accused persons to stay where they were and asked the Head Constable to arrange for panchas. On the arrival of the panchas, he and his companies entered the house and questioned the accused persons. He saw a white plastic bag lying by the side of the accused Mohinder Kumar. On search, he found that the bag contained two polythene packets of charas like substance. Both the packets were seized, weighed and samples weighing about 50 gms. were taken therefrom and sealed. The persons of the accused was searched and two pieces of charas from the right pocket of his pant were recovered weighing about 10 gms. and samples therefrom was also taken. At the instance of the accused, further recovery was effected from the adjoining room where a shoulder bag was found containing charas, from which also the samples were taken. The abovesaid search and seizure took place in the eventing between 7.45 and 8 p.m. i.e. after sunset.
17. The counsel for the appellants before the Hon’ble Supreme Court contended that the entire seizure had been effected in total violation of the provisions of the NDPS Act especially Section 41(2), Section 42(1) and Section 50.
18. The Hon’ble Supreme Court after referring to another decision of the Supreme Court in State of Punjab v. Balbir Singh (1994) 3 SCC 299 : 1994 Cri LJ 3702, observed as follows :-
In the instant case, the facts show that he accidently reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect Search. But when the conduct of the accused persons raised a suspicion he went there and effected the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered persons, on coming to know about the accused persons being in custody of the offending articles he sent for the panchas and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons Were in custody of narcotic drugs and sent for panchas, he was-under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso if the search is carried out between sunset and sunrise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequently to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the proviso to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory.
19. So observing, the Hon’ble Supreme Court set aside the conviction and sentence passed against the accused-appellants.
20. In the case on our hand also, we find that the vehicle driven by the accused was stopped on suspicion, the accused were interrogated and then search was made. Therefore when the conduct of the accused aroused suspicion of the SI/SHO-Mehar Singh (PW 8) leading to the search, he should have complied with the provisions of Section 50 of the N.D.P.S. Act by offering to the accused that if they so chose, search will be conducted in the presence of a Gazetted Officer or a Magistrate. No such offer was made to the accused-appellants in this case. The facts of the present case are almost similar to the facts in Mohinder Singh’s case 1995 Cri LJ 20 74 (SC) (supra) except for the fact that search in the case was made in a house, whereas the search in the present case was made in a vehicle. I have also pointed out that in the present case it is on suspicion and after interrogation that search was made by opening the lid of the tanker whereby lot of gunny bags were found lying in the central chamber of the tanker. From that stage or at least when one of the bags was taken and it was found that there were 72 other bags lying in the tanker, the provisions of Section 50 of the N.D.P.S. Act should have been complied with, which has not been done in this case, and this certainly affects the search and consequently the case of the prosecution for non-compliance of the provisions of Section 50 of the N.D.P.S. Act.
21. The provisions of Section 50 of the N.D.P.S. Act will have to be complied with before searching a vehicle, as laid down in Teja Singh v. State of Punjab (1996) 2 Rec Cri R 754 (Punj & Har), Amarjit Singh v. State (Delhi Administration) (1995) 2 Rec Cri R 578 : 1995 Cri LJ 1623 (Delhi), Harbans Singh v. State of Haryana (1997) 1 Rec Cri R 257 (Punj & Har) and Kulwant Singh v. Assistant Collector, Customs, Amritsar (1995) 22 Cri LT 494 (Punj & Har). The presence of the Gazetted Officer namely, M.S. Ahlawat, the Superintendent of Police at that time, will not make any difference, is also clear from the decision of this Court in Teja Singh’s case (supra). That was also a case where the poppy husk was recovered from the car driven by the accused. This Court held that the mere presence of the Gazetted Officer is not sufficient and the accused will have to be informed of his right to be searched in the presence of a Magistrate, relying upon the decision of this Court in Kulwant Singh’s case (supra).
22. Further, even according to the case of the prosecution, the SI/SHO-Mehar Singh (PW 8) and others were checking the vehicles from about 8 p.m. The evidence of PW 8 is also that it had grown dark when they intercepted the tanker. The learned counsel for the appellants, therefore, contended that as per proviso to Section 42(1) before undertaking the search of the vehicle, the SI/SHO should have recorded the grounds for his belief that any narcotic drug or psychotropic substance was in the vehicle (punishable under I he Act). He should have al so recorded the grounds for his belief that a search-warrant or authorisation could not be obtained without affording opportunity of the concealment of the evidence or for the escape of the offender. He further contended that when such record of the grounds is made, the SI/SHO should also send a copy thereof to his immediate official superior. The learned counsel for the appellants, therefore, contended that the provisions of Section 42(1) which are mandatory in nature, have also not been complied with in this case. SI/SHO-Mehar Singh (PW 8) admitted in his evidence in cross-examination that except the special report after the registration of the case, he did not send any other detailed report in writing to any other senior officer of his department. He also made it clear that by “special report” he meant copy of the F.I.R. which was sent by the M.H.C. after registration. He also stated that he did not inform the District Magistrate about the seizure. Pointing out these aspects, the learned counsel for the appellants relied upon the decision of the Hon’ble Supreme Court in State of Punjab v. Balbir Singh AIR 1994 SC 1872 : 1994 Cri LJ 3702, wherein it was held as follows :-
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.
23. Therefore, I am of the view that when in the present case, SI/SHO-Mehar Singh (PW 8) had not recorded the grounds for his belief before entering upon the search that he had the reason to believe that some contraband offending this Act was being carried in this vehicle and that an attempt to get a search warrant from a competent Magistrate would frustrate the object or facilitate escape of the offender, the trial is vitiated for non-compliance of the provisions of the proviso to Section 42(1) of the N.D.P.S. Act. Therefore, on this ground also, the appellants are entitled to succeed.
24. One other argument advanced by the learned counsel for the appellants is that the alleged contraband and the samples seized should be properly sealed by the S.H.O., whereas in the present case on hand, the SI/SHO has not sealed the contraband and the samples and that will throw a lot of doubt on the case of the prosecution.
25. The evidence of S.I./S.H.O.-Mehar Singh (PW 8) is that samples and the remaining poppy husk in the gunny bags were separately sealed with the seal of ‘MS’. He stated that both himself and M.S. Ahlawat affixed their seals. But I have already pointed out from the report of the Additional Sessions Judge, Ambala that none of the bags carried any seal or case number, (and only six of the sample parcels had seals) apart from many of them lying damaged, and some poppy husk lying scattered on the floor. This goes against the evidence of S.I./S.H.O.-Mehar Singh (PW 8). He admitted that he has not mentioned the name of M.S. Ahlawat, S.P. in the Daily Diary Report, though he stated that when he reached the police station, a report in the roznamcha was got recorded and he had given a bried reference of this case therein. But he admitted that the details of the recovery and the name of witnesses were not recorded in the D.D.R. The contention of the accused-appellants is that the vehicle in question was found abandoned and by using the same, they have been falsely implicated. In the face of this contention, these admissions made by the SI/SHO-Mehar Singh (PW 8) taken along with the fact that the contraband and the samples allegedly recovered from the accused were lying without seal and case number, some of them damaged and some Scattered on the floor and some even outside the property room, will certainly go to affect the case of the prosecution and cast a lot of doubt. This court in Kashmiri Lal alias Kala v. State of Punjab (1996) 1 Rec Cri R 244, held that a duty is cast upon the officer-in-charge of the police station to take charge of the contraband articles, keep them in safe custody, and if necessary, to allow samples to be taken. This Court also held that this is not an idle formality but the provision has been enacted to ensure that the case property remained in safe custody to avoid any tampering of the same.
26. This Court in another decision in Smt. Jeeto v. State of Punjab (1996) 23 Cri LT 126, also held as follows :-
It is of utmost importance that the case property should be preserved and kept in safe custody during the course of trial. This helps in establishing the identity. ASI Gulzar Singh PW 2 admitted that there were no identification marks on the bags and even it contained less poppy husk. The explanation forthcoming was that it may be due to wear and tear. The said explanation is totally unconvincing. If there was any wear or tear, then immediately entry must be made in the relevant register of the Malkhana and fact brought to the notice, of the authorities. Suddenly coming up in Court (and giving such an explanation cuts no ice. In fact during the, course of evidence, no attempt had been made by the learned trial Court when case property was produced to make a note that seals were intact or not. However, during cross-examination it transpired that there were no identification marks on the bags. The conclusions are inescapable that no attempt had been made to preserve the property and keep in safe custody. One wonders as to what was produced, was the alleged recovered poppy husk or not.
27. Of course, we are now at the appellant stage and not at the stage of trial, it may be that the trial has concluded, but still there is a duty to keep the material objects safe and in the same position in which it was allegedly seized from the accused. But as pointed out already, the report of the learned Additional Sessions Judge shows that the bags were not of the uniform weight. According to the prosecution, there were 73 bags each containing 18 kilograms of poppy husk out of which 250 gins, each was taken out from each bag as sample. If the remaining poppy husk was sealed and kept properly, then it should contain poppy husk less the sample taken, whereas it is not found to be so. One of the bag is reported to contain only 3.5 kilograms, whereas few bags were said to contain 20 kilograms. Neither of them could have and should have happened if really the contraband was sealed and kept under proper custody. Some of the bags were lying totally damaged outside the property room, and some poppy husk was also found lying sacttered on the floor. This casts a grave doubt as to the identity of the bags even. Though the decision cited above relates to the custody during trial, it will equally apply to the custody during appellate or revisional stage also.
28. In these circumstances, I am constrained to observe that this unhealthy practice of leaving the case property at the hands of the investigating agency or the revenue or other authorities has not only led to a situation where we find that the case property is not kept intact, but also to situation where there can be misuse of the very same case property, if and so desired by unscrupulous persons who are in possession of such case property. Therefore, it is high time that this High Court and the Government take steps for the construction of property room for each criminal court sufficient enough to hold all the case property so that the case properties are under the direct control of the court concerned. Want of funds cannot be alleged as a constraint, since, this is a matter which will affect the individual liberty of persons, who on conviction, have to be imposed with a minimum penalty of Rs. 1 lakh and also imprisonment for 10 years. Therefore, it is in the fitness of things and in the interest of justice that each and every criminal court of the State is provided with a property room sufficient to hold the case property. The Sessions Judges also shall be instructed to check periodically the case property of the various courts under their control and of his own Court. In this part of the country we find the investigating agency very often alleges that contraband is seized in large quantities and such alleged recovery of contraband in large quantities compels the trial Courts for want of sufficient space, to direct the investigating agency itself to keep the case property, exposing thereby the accused persons to the risk pointed out by me above. This is an unhealthy practice which denies justice to the persons accused of such crimes and will have to be given up and earnest steps have to be taken to build property room for each of the criminal courts. Therefore, a copy of this judgment be furnished to the Registrar of this High Court for taking appropriate steps in this regard at the earliest, not only for the construction of the property room but also for giving instructions to the Sessions Judges to periodically visit the property rooms of the various courts under their control to avoid malpractices and to see that the case property is kept intact without being tampered.
29. Reverting back to this case, I have to point out that the explanation given by the prosecution that in view of the wear and tear, there occurred some damage and that it is unavoidable, cannot at all be accepted. First of all, I do not understand how there could be any wear and tear. The property is kept in the property room and is taken out only when it is required by the Court and returned back to the Court. Such taking out and returning cannot result in wear and tear to the extent of damaging the bags and allowing some portion of the property to lie scattered even outside the property room. If there was any damage to any bag’ containing poppy husk, then it should have been entered in the concerned register, and the fact brought to the notice of the concerned officers, and set right by bringing it to the notice of the Court. Without having done any of these things, the investigating agency cannot be heard to say that due to wear and tear, the case property has been damaged. The investigating agency cannot be allowed to fake advantage of its deliberate actions or its own neglect or carelessness which certainly casts a lot of doubt on the identity of the case property itself. This is especially so when there is no seal or case number attached to the case property.
30. Taking into consideration all these aspects, I am of the view that the accused are entitled to the benefit of these doubts and have to be acquitted. Therefore, it is not necessary for me to consider certain minor inconsistencies pointed out by the learned counsel for the appellants.
31. Resultantly, the appeal is allowed setting aside the conviction of and sentence passed against the accused-appellants, and the accused-appellants arc acquitted.