Gita Mittal, CJ.
This Criminal Acquittal Appeal has been directed against the judgment dated 31st October, 2016 passed by the Principal Sessions Judge, Bhaderwah in the case titled State v. Ikhlaq Ahmed arising out of the FIR No.22/2010 registered by Police Station, Bhaderwah under sections 8/18/20/21/22/29 of the Narcotics Drugs and Psychotropic Substances Act (for short 'NDPS Act').
2. We have received the record from the Sessions Court and heard Shri F A Natnoo, learned AAG appearing for the appellant and Mr. Ankush Manhas, learned counsel for the respondent. Learned counsel have carefully taken us to the record of the case and we have given our considered thought to the submissions made.
3. The case of the prosecution briefly considered was that on the 28th of January, 2010, the police received information that Ikhlaq Ahmed and Imtiaz Ahmed were in the trade of narcotics; that Ikhlaq Ahmed (respondent herein) had received heroine from Imtiaz Ahmed and was on his way towards Khellani Doda-Bhaderwah road.
4. The Police party headed by PW-6 Inspector Tilak Raj Bhardwaj which received information about the above, was already on nakka duty at Senai Khellani Morh.
5. On basis of the docket issued by Inspector Tilak Raj Bhardwaj at Police Station, Bhaderwah, Crime No.22/2010 for commission of offences punishable under sections 18/20/22 and 29 of the NDPS Act was registered. Investigation thereof was entrusted to PW-8 Abdul Qayoom Dy.SP who reached the spot with his team. The respondent Ikhlaq Ahmed was apprehended by the police.
6. It was claimed that option of search under section 50 of the NDPS Act was given by the Investigating Officer to the respondent who consented for his search by the Dy.SP. Upon search, a leather packet containing some intoxicating substance was recovered which was seized on the spot.
7. The recovered substance weighed 500 grams from which two samples of 10 grams each were taken out and sealed.
8. The remaining seized material was sealed separately and the parcels were marked as A, B and C.
9. During investigation, the parcels were re-sealed. One parcel sample was sent to the Forensic Science Laboratory, Jammu for chemical analysis. Shri Pawan Abrol, Scientific Officer, FSL, Jammu, who has been examined during trial as PW-5, tested the seized contraband and opined presence of Diacetyle Morphine (Heroin) in the seized material.
10. Statement of witnesses were recorded and on completion of the investigation, on 10th May, 2010, the SHO, Police Station, Bhaderwah presented the charge sheet against the two persons namely Ikhlaq Ahmed (the respondent herein) and Imtiaz Ahmed for commission of offences under sections 8/18/20/21/22 and 29 of the NDPS Act.
11. It appears that on a consideration of the evidence, Imtiaz Ahmed came to be discharged vide order dated 27th October, 2010 of the Trial Court. This order has attained finality. We consequently consider the case of the prosecution only in respect of the allegations against the respondent (Ikhlaq Ahmed).
12. By the same order, on a consideration of the material placed by the prosecution, the Trial Court framed formal charges for commission of offences under sections 8/20/21 and 22 of the NDPS Act against the respondent. The respondent pleaded not guilty and claimed trial.
13. The prosecution examined eight witnesses in support of the charges during trial.
14. On 12th May, 2016, the respondent was examined under section 342 CrPC, 1973 and was given an opportunity to explain the incriminating evidence which had been led by the prosecution. The respondent disputed the recovery of any contraband from his possession, alleged that he had been falsely implicated and that the witnesses have given false statements against him. Upon a detailed consideration of the evidence in its entirety and the applicable law, the learned Trial Judge found that the prosecution had failed to prove the charges against the respondent beyond reasonable doubt and consequently, by the judgment dated 31st October, 2016, acquitted the respondent from the charges for which he had stood tried.
15. This judgment is a subject matter of challenge in the present appeal.
16. The challenge rests primarily on the general submission on behalf of the appellant that the Trial court had not appreciated the evidence on record, the statements of the prosecution witnesses in totality or in the right perspective; and ignored nor the applicable law. It is the contention of Mr. Natnoo, learned AAG that there was sufficient evidence on record which warranted conviction and sentencing of the respondent for commission of the offences for which he had been charged.
17. On the other hand, Mr. Ankush Manhas, learned counsel for the respondent has staunchly contended that the prosecution had failed to establish the commission of the offences on the part of the respondent or the mandatory compliances required by law and that the findings of the learned Trial Judge could not be faulted. It is consequently prayed that the present appeal be rejected.
18. This court seized of an appeal against a judgment of acquittal has limited jurisdiction. Before examining the present challenge, we may briefly dwell upon the scope of the jurisdiction of the appellate court which is seized of a challenge to a judgment of acquittal by a trial court. The parameters on which a sentence of acquittal would be reversed by the appellate court are well settled. The same are within very narrow considerations.
19. In the pronouncement of Supreme Court in Ram Swaroop and others vs. State of Rajasthan, (2004) 13 SCC 134, the Supreme Court observed thus:-
"25.......................................................................................It is well settled that if two views are reasonably possible on the basis of the evidence on record, the view which favours the accused must be preferred. Similarly it is well settled that if the view taken by the trial court while acquitting the accused is a possible, reasonable view of the evidence on record, the High Court ought not to interfere with such an order of acquittal merely because it is possible to take the contrary view. It is not as if the power of the High Court in any way is curtailed in appreciating the evidence on record in an appeal against acquittal, but having done so, the High Court ought not to interfere with an order of acquittal if the view taken by the trial court is also a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse."
20. The above principle was reiterated in State of Rajasthan vs. Raja Ram, (2003) 8 SCC 180, the Supreme Court has held as follows:-
"11. The decision taken by this Court in the aforementioned case, has been further reiterated in State of Rajasthan vs. Raja Ram, (2003) 8 SCC 180, wherein this Court observed thus: "Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. (see Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference."
21. Again in (2009) 12 SCC 629, Vijay Kumar vs. State by Inspector of Police, Madras and another, the Supreme Court summed up the legal position as follows:-
"12. The principles which have been set out in innumerable cases have been reiterated as under:-
(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers, it possesses while hearing an appeal against an order of conviction.
(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and finding in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(3) Before reversing the findings of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reason for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.
(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box.
(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused."
22. It is thus well settled law that this court while hearing an acquittal appeal can reappreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the trial court is also a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse. (See: Ram Swaroop and ors vs. State of Rajasthan, (2004) 13 SCC 134; Upendra Pradhan vs. State of Orissa, (2015) 11 SCC 124 and State of Rajasthan vs. Raja Ram, (2003) 8 SCC 180.) The present challenge has to be examined on these principles and parameters.
23. It is trite that the offences under the NDPS Act are of extremely serious nature and have far reaching consequences. Stringent penalties are leviable for commission of offences thereunder. In this background, it has been repeatedly held that compliance with the requirements of the statutory provisions is mandatory and no exception thereof is permitted. Therefore, the evaluation of the evidence lead by the prosecution in the instant case has also to be examined from the perspective of strict compliances with the requirement of the statutes.
24. The learned Trial Judge has carefully analyzed the statutory requirements and also the evidence which has been led by the prosecution. Let us examine the sequence in which the events are alleged to have occurred. The first matter which has been considered by the learned Trial Judge relates to the seizure of the contraband, sealing of the parcels and maintenance of the purity of the sealed articles. On this aspect, the prosecution has examined Inspector Tilak Raj Bhardwaj as PW-6 who was attached in the office of the SDPO, Bhaderwah on the 28th January, 2010.
25. PW-6 Shri Tilak Raj Bhardwaj refers to his posting on the 28th January, 2010 at the checking post at Senai Khellani Morh on 28th January, 2010, when information, regarding the activities of the accused persons of smuggling of intoxicating substance, was received. PW-6 stated that he had prepared the docket based whereon, an FIR was registered and that on his telephonic information, the SDPO, Bhaderwah also reached the spot. The accused persons came from Kehlani side. When the respondent was produced by the SHO before the SDPO, the SHO conducted the search of the accused at the instance of the SDPO, Bhaderwah and from his possession, inter alia, the packet containing some intoxicating substances was recovered from the trouser of the accused. As per PW-6, the SDPO obtained an electronic weighing machine and weighed the recovered substance which was found to be 500 grams, out of which three samples of 10 grams each were taken out and sealed. The remaining substance was sealed in a separate packet.
26. The other witness examined in support to establish the seizure and the sealing was Constable Bipin Kumar examined as PW-1, who stated that on 28th January, 2010, he was posted as personal security officer with the SDPO, Bhaderwah. PW-1 Bipin Kumar corroborates PW-6 Tilak Raj Bhardwaj on material aspects regarding the presence of SHO, SDPO, search, recovery and preparation of the samples. Both these witnesses say that the electronic weighing machine was called at the spot for weighing the recovered as well as sealed contraband. PW-8 Abdul Qayoom also stated that the samples were weighed on the spot.
27. While PW-1 Constable Bipin Kumar has stated that two samples of 10 grams each were drawn, PW-6 Inspector Tilak Raj Bhardwaj stated that three samples of 10 grams each were drawn. PW-7 Shafkat Hussain Bagwan has stated that he did not weigh the small packets separately. According to PW-6 Inspector Tilak Raj Bhardwaj, the SDPO obtained the electronic weighing machine and weighed the recovered substance, out of which three samples were taken out and PW-1 Bipin Kumar stated that two samples were taken out.28. The testimony of Shafkat Hussain Bagwan who was examined as PW-7, on this aspect, however, is significant. This witness stated that he did not know the accused. So far as the contraband is concerned, PW-7 stated that in the year 2010, a police person who had been sent by Dy.SP came to him with the packet for weighing the same. Shafkat Hussain Bagwan has stated that he was a shopkeeper and that he was asked by a police person who was carrying a packet, to bring his scale to the police station. He has testified that he weighed the packet which was 500 grams. The witness did not know what the packet contained but the police personnel were saying that it contained brown sugar. According to PW-7, from that packet 2/3 small packets were prepared in the police station and were marked as A, B and C.
29. The important statement by this witness was that he was called to the police station with the electronic machine where a packet was weighed which was found to be 500 grams. When cross examined, the witness stated that the packet was kept on the weighing machine by one constable in his presence and in presence of SHO and SDPO.
30. The witness PW-7 has no idea as to from where and from whom that packet was recovered. The witness also did not weigh the small packets. He is categorical that the packet was weighed in police station. He clearly stated that he did not go to Senai with his weighing machine to weigh the packets. This private person completely demolishes the evidence of PW-1 Bipin Kumar and PW-6 Tilak Raj Bhardwaj that the recovered material was weighed at the spot.
31. Significantly, PW 1 Constable Bipin Kumar and PW6 Inspector Tilak Raj Bhardwaj, these witnesses rule out the presence of any other person, more specifically, that of Shafkat Hussain Bagwan on the spot.
32. Constable Raj Kumar who was examined as PW-2 stated that on 20th January, 2010 he had been posted as PSO with SHO, Bhaderwah and had accompanied him to Khelani on patrolling duty also corroborated PW-7 Shafkat Hussain in the statement that the packet was weighed in the police station. He was categorical that nothing was weighed on the spot with the electronic machine. This witness also stated that the search of the accused was effected by the PSOs, SHO and SDPO were standing at about 10/15 feet away and Constable Bipin Kumar recovered the contraband from the accused and handed it over to SDPO.
33. The above evidence casts a substantial doubt with regard to the place of effecting the seizure; weighing and sealing of the samples.
34. The learned Trial Judge has made an elaborate discussion as to the manner in which the evidence was required to be appraised. The learned Trial Judge has noted that a distinction needs to be drawn while assessing the impact of discrepancies in the statements of police officials who had received training and knew the implications of testimony before the court of law and evidence of rustic villagers. Reliance has been placed on the following observations made in the judgment of the High Court of Judicature of Punjab and Haryana in the case reported at 2013 (2) Criminal Court Cases 598 titled Lala and Ors. vs. State of Punjab:
"The other grounds of defence i.e. discrepancies in the statements of official witnesses regarding the number of dockets prepared or as to who was driving the tractor are not material in a case where the witness is a layman. However, six out of seven prosecution witnesses, in the instant case are the police officials who receive adequate training and know the implications of the statements made by them before the court of law. The discrepancies or contradictions in the statements become material in the instant case as the statements have come from the trained officials of the Police Force. Therefore, in the opinion of this Court, a contradiction or defect in the statement of police witness takes the complexion of material deficiencies. This is more so because NDPS Act imposes strict liability on offenders. The guilt of anyone accused of a crime under the NDPS Act thus, has to be established by scanning the prosecution evidence in the manner of a microscopic examination. Thus, the contradiction in the statements of PWs with regard to the mode of transportation and preparation of other records in the present case, are material."
35. Given the contradictions in the testimonies of the police officials, the learned Trial Judge has also disbelieved the prosecution case for the failure to associate any independent witness in the search and recovery. It has been noted that the case was one of the police receiving prior information, yet it did not bother to associate any magistrate or responsible person of the locality in the investigation. The search and recovery was effected on a main road and that too in the evening. The evidence on record showed that the place where the search was effected was open to human as well as vehicular traffic. The learned Trial Judge has observed that there was ample opportunity for the police to associate any independent witness in the seizure of the contraband, yet the police did not do so. In the given circumstances, failure to join any independent witnesses who were available, has been held to cast a substantial doubt in the search and seizure. No explanation for not doing so is also forth coming on the record. Nothing is pointed before us which would discredit the observations of the Trial Judge.
36. We now come to a critical stage in the investigation of a case involving recovery and seizure of contraband under the NDPS Act. In the present case, we have noticed above that the recovery was effected on 28th January, 2010. However, there is a grave contradiction with regard to the place where the samples were lifted, weighed and sealed. PW-1 Bipin Kumar and PW-6 Tilak Raj Bhardwaj have testified that the samples were lifted on the spot i.e. on the road side. However, PW-7 Shafkat Hussain Bagwan and PW-3 Karan Singh have stated that the samples were lifted, weighed and sealed in the police station.
37. So far as preservation of the samples were concerned, according to PW-8 Abdul Qayoom, the samples were deposited in the malkhana of police station on the same day. Unfortunately, this statement is not supported by any official record. Let alone examining the Moharer or the incharge of the malkhana to prove the deposit of the samples, even the copy of the concerned malkhana register was not placed on record or proved to establish this very important fact.
38. While the prosecution led evidence that the sample parcels were taken out for the purpose of examination by the FSL, Jammu, no evidence was led to establish as to when the samples were taken out, when they were sealed and when they were deposited again. There is no evidence on record as to when they were deposited with the FSL, Jammu for the purpose of examination. In this background, the conclusion of the learned Trial Judge that the prosecution has failed to prove the safe custody or purity of the samples again is unassailable.
39. So far as the prosecution story is concerned, there is also doubt not only as to the place but also with regard to weight of the samples. While it was the prosecution case that the samples weighed 10 grams each, however, PW-5 Pawan Abrol, Scientific Officer, FSL, Jammu who tested the samples stated that it weighed 14 grams. The learned Trial Judge has held that this weakened the case of the prosecution to a great extent as it introduced the possibility of the sample parcels having been tampered with.
40. The variation in the weight of the samples when coupled with the failure of the prosecution to establish its case that the ring used for sealing the parcels was actually in the Supardarinama of the Constable Karan Singh, has further been held to make the prosecution story doubtful. Constable Karan Singh denied that the ring was kept with him and therefore, there was no evidence at all to establish as to whose safe custody the ring which was used to seal the parcels including the sample parcels were kept by the investigating officer.
41. On a scrutiny of the evidence led by the prosecution, the learned Trial Judge has found that the prosecution had failed to establish the compliance of section 50 of the NDPS Act, which required the police to inform the accused person of his right of being searched before a Magistrate or a gazetted officer. While a notice under section 50 of the Act was on record, the learned Trial Judge has observed that there was no witness to such notice.
42. Further section 52 A(2) of the NDPS Act lays down the procedure for preparation of an inventory of the offending substances. While section 53 of the NDPS Act mandates that the same has to be forwarded to the officer of the nearest police station or to officer empowered thereunder and making an application to a Magistrate for the purpose of, inter alia, certifying the correctness of the inventory so prepared; taking photo graphs of the substance in the presence of the Magistrate and certificate of the photographs as true; allowing representative samples of the substances to be drawn in the presence of the Magistrate and certifying the correctness of the list of the samples drawn. In the instant case, no such inventory was prepared nor the application made to the Magistrate as required.
43. Section 55 of the NDPS Act also mandates that the investigating officer has to get seal of the SHO affixed upon the sample parcels before depositing it in the malkhana. This has not been done in the instant case.
44. Again the compliance under section 57 of the NDPS Act by the Investigating Officer requiring him to report all particulars of the arrest and seizure to his immediate official superior within 48 hours thereof, has been - breached. Even the FSL form which was required to be filled on the spot was not done.
45. So what would be the effect of all these non compliances? The Supreme Court had an occasion to opine on the cumulative effect of the non compliance of all the above procedural requirements in the judgment reported at 2001 (1) Supreme 625 titled Gurbaksh Singh vs. State of Haryana, wherein it was held as follows:
"7. Further after considering various decisions the Court held (in para 57) 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 person concerned of his right under sub-section (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.
8. In view of the aforesaid decision of the Constitutional Bench, in our view, no further discussion is required on this aspect. However, we may mention that this right is extension of right conferred under section 100 (3) of the Criminal Procedure Code, 1973. Sub-Section (1) of Section 100 of the Code provides that whenever any place liable to search or inspection is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. Sub-Section (3) provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. Sub-section (7) of Section 100 further provides that when any person is searched under sub-section (3) a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person. This would also be clear if we refer to search and seizure, procedure provided under Sections 42 and 43 of the building, conveyance or place. Hence, in our view, Section 50 of the N.D.P.S. Act would be applicable only in those cases where the search of the person is carried out.
9. The learned counsel for the appellant next contended that from the evidence it is apparent that the I. O. has not followed the procedure prescribed under Sections 52, 55 and 57 of the N.D.P.S. Act. May be that the I.O. had no knowledge about the operation of the N.D.P.S. Act on the date of the incident as he recorded the FIR under Section 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot total
Please Login To View The Full Judgment!
ly ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance was poppy husk., but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy-husk. 10. In the result, the appeal is allowed and the impugned judgment and order passed by the High Court confirming the conviction of the appellant is set aside. The appellant be released forthwith, if he is not required in any other case." (Emphasis by us) 46. The Learned Trial Judge has held that compliance of the above procedural requirements was essential in order to ensure that the investigation was reasonable, fair and just. In the present case, the non compliance of the statutory mandate appears to be deliberate and intentional and therefore, required to be viewed with suspicion. On a consideration of the totality of the circumstances, it has thus been rightly held by the learned Trial Judge that the breach of the statutory provisions was intentional and deliberate and certainly caused prejudice to the respondent casting a substantial doubt on the prosecution story. 47. On a consideration of the totality of the evidence, the applicable statutes and the law laid down by the Supreme Court, the findings of the learned Trial Judge that prosecution had failed to establish the case against the respondent beyond reasonable doubt is certainly a reasonable view and cannot be held erroneous or perverse. The learned Trial Judge has carefully undertaken a meticulous analysis of the evidence on record and tested the same against the applicable law. 48. We therefore find this appeal as devoid of legal merit. 49. The appeal is therefore dismissed.