Zaki Ullah Khan,J.
1. Appellant Bablu @ Mote has preferred this appeal against the judgment and order passed by Learned Additional Sessions Judge, Court no. 1, Bahraich vide his order dated 11.10.2012, sentencing the appellant to undergo ten years rigorous imprisonment together with a fine of Rs. 1,00,000/- and in default of payment of fine, he will have to undergo another one year's rigorous imprisonment.
2. Brief facts in the instant appeal are that S.I. S.K. Mishra along with constable Jwala Prasad Mishra and constable Ravindra Mishra were engaged in picketing during night hours on24.04.2006 on western side of the canal at Village Kakri; that during the operation, the Police party noticed a person coming on the western Bank of the canal from the northern side and when the Police party checked him by throwing torch light, the person turned behind and tried to flee away towards the western side; that on being suspicious, the Police party catch hold of him using force; that when he was confronted, he introduced himself as Bablu @ Mote, son of Liyakat, resident of Radhan Tola, P.S.- Nanpara, District- Bahraich; that on personal search of that person, they found him having in possession of black polythene bag containing a solid substance in the shape of cake; when Police personnel asked to disclose what it is, he informed them that this is charas and that weighed about 1.25 kg; that the nabbed person disclosed that he is coming from Kingdom of Nepal; that when the Police personnel got aware that the recovered article is charas i.e. narcotic substance, then they informed him that he can get his search conducted in front of Magistrate or before a Gazetted Police Officer; that the apprehended person surrendered and informed that he is in possession of Narcotic substances, it does not matter whether they search him or search be made before a Magistrate or Police Officer; that after obtaining his consent, a consent letter (exhibit-Ka 2) was prepared at the spot; that out of the recovered article 24 gram was taken for testing in the Laboratory and 24 gram specimen was prepared and separately packed in plastic and placed in a separate envelop and was sealed on the spot; that remaining article recovered was also sealed on the spot and a specimen seal was prepared and thereafter the person was taken into custody at 2.00 am under Section 8/20 N.D.P.S. Act.
3. The recovery memo was prepared in the torch light, which is exhibit -Ka 1 and a copy of it was given to the appellant. The police personnel deposited the recovered material at the Police Station along with the recovery memo (Exhibit-ka 1) and handed over the custody of the accused to the Nanpara Police at the Police Station, a case was registered as Crime no. 713/2006, under Section 8/20 N.D.P.S. Act and on the basis of this, the FIR was registered at 4.30 am, which is exhibit-ka 4; that the description of this has been mentioned in G.D. No. 6, which is exhibit-Ka-3.
4. The Investigating Officer started the investigation immediately on 24.04.2006 and prepared a cite plan (Exhibit-Ka-5) after recording the statement of the witnesses of fact and the specimen prepared at the spot was sent to the Forensic Science Laboratory, Lucknow for examination. The Investing Officer, after completing all formalities, submitted the charge-sheet (Exhibit-ka-7) in the Court on 09.05.2006.
5. The Court of Magistrate took cognizance on the charge-sheet and committed to the Court of Sessions for Trial. The appellant denied the charges and preferred to be tried.
6. The prosecution examined as many as five witnesses to prove its case. P.W-1 Constable Jwala Prasad Mishra and P.W.-2 Sub-Inspector Srawan Kumar Mishra, are witnesses of fact who arrested the appellant and conducted the search. P.W.-3 is Head Constable Munindra Kumar Tripathi, who has registered FIR and P.W.-4 is Sub-Inspector Ram Swabhav Verma, who has conducted the investigation. Where P.W.-5 is constable Anirudh Kumar Singh. The amicus curiae appointed in the Lower Court has waved the formal proof by accepting the genuineness of report of Forensic Science Laboratory. Therefore, in accordance with Section 294 Cr.P.C, document has been exhibited. The appellant, however, disputed the prosecution case in his statement under Section 313 I.P.C and stated that he is a rickshaw puller and the Police personnel wanted to take free ride and when he demanded the hire, started beating him. They were drunk and implicated him falsely in the instant case. But he did not produce any evidence, in defence to prove the assertions.
7. The Learned Trial Court, however, believed the prosecution witnesses and convicted the appellant on the basis of the evidence produced before him and convicted the appellant for having in possession of the commercial quantity of the charas and convicted him under Section 20 N.D.P.S. Act and sentenced him to undergo rigorous imprisonment of ten years together with a fine of Rs. 1,00,000/-. Aggrieved by the aforesaid order, the instant appeal has been preferred by the appellant.
8. Learned Counsel argued that it is an admitted fact that the appellant is an illiterate person and has affixed his thumb impression on the consent memo (Exhibit-Ka 2) and recovery memo (Exhibit-Ka 1). Consent memo and recovery memo were never read before him. Hence, the contents of these documents cannot be used against the appellant as he was not aware of the facts mentioned in those documents.
9. The next point raised by learned counsel for the appellant is that the compliance of Section 50 N.D.P.S. Act was not completed. Learned Counsel argued that as soon as the appellant was apprehended and the moment he disclosed that he is having Charas, then it was mandatory for the Police personnel to apprise him of his legal rights; that whether he would like to be searched before a Magistrate or before a Gazetted officer. As per record of the prosecution, they have mentioned option of Gazetted Police Officer which is not warranted under the N.D.P.S. Act, therefore, the compliance of Section 50 N.D.P.S. Act has not been made. The document itself shows that it is against the provision of the N.D.P.S. Act. Learned counsel cited a decision of this Court in the case of Prahlad vs. State of U.P. [2004 (2) EFR 162]. In the instant ruling, the Single Judge of this Court in Paragraph- 15 has held as under:-
"The S.I. Disclosed the appellant that he could be searched before a Magistrate or a Gazetted Police Officer. When the accused once admitted that he was having Ganja in his 'Gathari', the arresting officer was required under the law to inform him about his right that he could be taken to nearest Gazetted Officer to nearest Magistrate for search. In the instant case, the accused was given option to be searched in the presence of a Gazetted Police Officer or Magistrate. The law requires that offender has got a right to be searched in the presence of nearest Gazetted Officer of any of the departments mentioned in Section 42 of the Act. However, in the instant case, the arresting officer proposed that he could be taken to a Magistrate or a Gazetted Police Officer and thus, provisions of Section 50 was not complied with".
10. Learned counsel further reiterated that neither they tried to search the independent public witnesses nor did they submit any explanation regarding non-availability.
11. Learned Counsel for the appellant also pointed out that recovery has been affected from polythene bag. The appellant was holding it in his right hand. Learned counsel pointed out that it is interesting to note that the search was conducted by Sub-Inspector Srawan Kumar Mishra (P.W.-2). Therefore, the Hon'ble Apex Court's view is attracted in these circumstances. The Hon'ble Apex Court in the case of Dilip and Anr. vs. State of Madhya Pradesh [2007 (1) JIC 683 (SC)], has held in paragraph 6 of the ruling which is as under:-
"It is now well settled that the offence committed under the Act is a grave one. Procedural safeguards provided therefor in terms of Sections 41, 42 and 50 of the NDPS Act should be complied with."
In para 12 of this case, the Hon'ble Apex Court is of the view that:-
"Before seizure of the contraband from the scooter, personal search of Appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with."
In para 16 of this Case, the Hon'ble Apex Court has observed as under:-
"In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the persons of the appellants were also searched, it was obligatory on the part of P.W.10 to comply with the said provisions. It was not done."
12. Therefore, in the light of these mandatory directions of the Hon'ble Apex court the search is a nullity and learned Trial Court ought not to have relied on these facts.
13. The next point raised by the learned counsel for the appellant is that recovered contraband was never weighed. Even during the investigation or trial, it was not weighed.
14. In Jagdish v. State of U.P. [2006 (2) EFR 570], the Single Judge of this Court has ruled that weight of recovered article goes to the root of the jurisdiction because only the weight of the recovered article determines the jurisdiction.
15. Learned counsel reiterated that since the weight has not been gathered, then how can the appellant be held for enhanced penalty for keeping commercial quantity. The prosecution was not sure whether it was a commercial quantity or not, because it has not been weighed. The commercial quantity is one kilogram and above and it was 1.25 kgms. The Court has only adjudged on the ground that there can be variation of up to 10 to 20 grams, but how can the court estimate that the quantity was exactly 1.25 kgms. Therefore, it is doubtful whether the quantity was commercial or not. Learned counsel pointed out that interesting thing is that out of the recovered articles 24 grams each was taken for specimen. The question is how only 24 grams have been separated from the entire sample of 1.25 kgms. The figure is like measured from the electronic weighing scale, but, in fact there was no weighing machine or scale and this fact has been justified by the report of Forensic Science Laboratory, Mahanagar (Ex.Ka-8) which mentions that they found 20.4 grams material containing monogram 'MKT' meaning thereby this was sealed by Munendra Kumar Tripathi, who was not a member of raiding team. Whereas the articles were sealed and supplied by using this seal. Prosecution has not disclosed this discrepancy. Therefore, the Forensic Science Laboratory did not receive the sample from the material seized from the possession of the appellant because the seal bearing the mark "MKT" that is the seal belong to Munendra Kumar Tripathi (MKT), who was sitting at the Police Station and was not present at the spot. The sample was however sent to C.O. Nanpara on 27.04.2006 which is Ex.Ka-6 and this letter Ka-6 along with report was given to Ghanshyam Upadhyay for taking it to F.S.L., Mahanagar. However, Ghanshyam Upadhyay was not examined. It has not been explained that what he has done with this sample for eleven days because 27.04.2013 is the date for sending the sample while it was received on 08.05.2006. However, there is a delay of eleven days and he has not been examined to explain this fact. This shows that sample has been tampered with. The appellant cited Megh Raj v. State of U.P. 2009 (2) EFR 540, the Single Judge of this Court has ruled in para 10 of the judgment that:-
"The evidence of witnesses Ramji Gautam (P.W.5) and Sant Saran Singh (P.W.5) brings out that both the samples were sealed under the seal of C.J.M. Siddharth Nagar. The reports of chemical analyzer (Ext. Ka16 and 17) shows the presence of the seal of Munsif Magistrate Naugarh Basti cover both the samples of crime No.426 of 2004 and 427 of 2004 which relates to the appellants. The covering letter on record is that of C.J.M. but in the report of chemical analyzer, the seals of Munsif Magistrate Naugarh Basti were found. The presence of seals of Munsif Magistrate Naugarh Basti over the samples creates a reasonable doubt about sending the same samples of chemical analyzer which were drawn in the Court of C.J.M."
16. Learned counsel also submitted that the learned Trial Court was of the opinion that there may be difference of 10 to 20 grams in total weight because it was not weighed and if this opinion of the learned Trial Court is accepted then the entire material comes out to be around one kilogram, which is near to commercial quantity.
17. In Sanauwar Alam v. State of U.P. [2011 (2) EFR 431], the Single Judge of this Court has made following observations:-
"The weighing of the recovered contraband was also not proper, in fact, the weight of the recovered item was not of one Kg. 100 Grams because according to the report of Public Analyst, 88 grams charas was received for the purpose of Analysis, whereas 100 grams charas was sent for analysis purpose. It also shows that in the same ratio, the weight of the recovered contraband was less than one Kg."
18. Therefore, the appellant deserves to be given benefit of quantity, if not complete on merits. Last point submitted by learned counsel for the appellant is that compliance of Section 50 and 57 of N.D.P.S. Act have not been made. The prosecution says that compliance has been made through R.T. Set as shown in G.D. Ex.Ka-3. But, this method of mandatory compliance of Section 42, 50 and 57 N.D.P.S. Act is not in accordance with the requirement of Act. The Hon'ble Apex Court's view in Rajender Singh v. State of Haryana, [2011 (3) EFR 373], wherein it has been observed as under:-
"In any case the principles settled by the Constitution Bench are in paragraph 35 and have already been re-produced by us hereinabove. Likewise, the dispatch of a wireless message to PW-6 does not amount to compliance with Section 42(2) of the Act as held by this Court in State of Karnataka vs. Dondusa Namasa Baddi (2010) 12 SCC 495."
19. Learned counsel thus argued that prosecution has utterly failed to prove its case beyond all reasonable doubt and appellant is entitled to acquittal on the basis of benefit of doubt.
20. Replying the arguments, Govt. Advocate submitted that there is no error in the judgment and order. The learned Trial Court has elaborated the facts and the mandatory provision. The prosecution did comply the mandatory provision. The Police party was on picketing duty and they nabbed one person on suspicion and initiated the search. As far as the personal search is concerned, nothing has been recovered from his personal search but he was holding the polythene bag in his right hand and from the polythene bag, the incriminating article was recovered and it was the appellant himself, who confessed that the thing possessed by him is narcotic substance. There is a consent letter and under the special circumstances after obtaining the consent, the search can be made by them only. Beside the personal search, the seized contraband was not recovered from his pocket therefore, strict compliance of Section 50 was not necessary.
21. Learned Government Advocate also refuted the argument that there is a doubt regarding weight of contraband. It is an admitted fact that the appellant himself admitted that it is 1.250 kgms and out of that they approximately took 24 grams each from the material but subsequently that was found to be around 20 grams by the Forensic Science Laboratory. It was an approximate weight but, in any case, it was more than one kilogram that is a commercial quantity. Minor discrepancy do not matter much when it relates to the contraband like narcotic substance. The plea that he was illiterate is not material in the present set of circumstances because recovery memo was prepared on the spot on dictation of one person and the other Police personnel recorded it. Therefore, the allegation that he was not aware that in any case, the compliance was made and it will not affect the sentence passed by the learned Lower Court; that the appellant was not having commercial quantity.
22. In reply, the learned counsel for the appellant submitted that in case the Court is of the opinion that compliance has been made, then looking into the circumstances of the case, the sentence can be modified regarding minimum quantity because he has established on record that there is a suspicion that the article was above one kilogram or not and, in case of uncertainty, the doubt will terminate in favour of the appellant and he will be given benefit of doubt. The appellant is in jail w.e.f. 24.04.2006 and it is almost seven years and seven months and there he may be sentenced for having quantity less than one kilogram i.e. non-commercial and he may be sentenced to imprisonment already undergone because there is no minimum sentence for medium quantity.
23. Heard learned counsel for the appellant as well as learned Government Advocate. As per prosecution story, the appellant was apprehended on the western bank of the canal in village Kakri. He tried to flee on 24.04.2006 at 02.00 am when he found that the Police had noticed him and that is why he tried to flee by returning back. But meanwhile, the Police nabbed him. He was checked by the Police and during checking, the police found that he was having contraband to the amount of 1.25 kg in a Polythene bag and which he was holding in his right hand. The time of 2 o'clock at midnight suggest that there was none except the Police personnel and both the P.Ws has specified the fact during statement on Oath and therefore, there is no question of availability of independent witnesses. Regarding compliance of Section 50 N.D.P.S. Act, the prosecution tried to comply the provisions of Section 50 N.D.P.S. Act .
24. Section 50 of the N.D.P.S. Act is reproduced as below:-
"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 42 or Section 43, he shall, if such person as 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 sub-section (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 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 sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]"
25. There is no illegality regarding the authority of the search. The search was conducted by Sub-Inspector, who is authorized to take under Section 42 of the Act to search. The only thing is that they mentioned in the memo regarding the Gazetted Police Officer, whereas the provision is for Gazetted Officer, but in this case this is merely a slip because they apprised him of his legal rights that he may be searched either before a Gazetted Officer or Magistrate. They have very well mentioned the term Magistrate. As far as the search under Section 50 is concerned, it relates to the personal search. In the instant case, the contraband was recovered from the Polythene bag which he was holding in his right hand. Although, personal search was conducted but nothing was recovered in personal search and, that too, was conducted after taking his consent. Therefore, this provision will not apply in the instant case because the facts are distinguishable. Regarding polythene bag, this provision will not be applicable because the recovery of the article from the polythene bag will not hit by Section 50 of the N.D.P.S. Act. Therefore, as far as Section 50 is concerned, I do not think the arguments raised by learned counsel attract the provision in the instant case and as per Hon'ble Apex Court's view in the case of Dilip and Anr. vs. State of Madhya Pradesh (supra), the provisions will not apply.
26. As far as argument of the learned counsel regarding the weight of the contraband is concerned, the matter has to be viewed in light of the statement of the witnesses on record. Learned counsel pointed out that Section 57 of the N.D.P.S. Act requires that the report of arrest and seizure be sent to superior officers within 48 hours.
27. Section 57 of the N.D.P.S. Act is reproduced below:-
"Report of arrest and seizure- Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight 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".
28. As far as the report is concerned, the report has been forwarded immediately after recording of the crime number at the Police Station and the FIR GD No. 6 (Exhibit Ka-3) describes the entire proceedings and immediately through R.T. Set, the message was sent to Superior Officer and the FIR was sent to the Court concerned. This fact has not been challenged before the Lower Court. Therefore, there is no breach of compliance of Section 57 of the N.D.P.S. Act.
29. The main argument of learned counsel is that the quantity recovered cannot be adjudged as it has been mentioned that weight of the recovered article goes to the roots of jurisdiction because only the weight of the recovered article determines the jurisdiction. In the case of Jagdish vs. State of U.P.(supra),the emphasis has been laid down that the recovered articles should be weighed by an Arresting Officer concerned or by the S.H.O and in case they fail, it is the duty of the Special Judge or a Magistrate, who grants the first remand because weight is the main factor which determines the jurisdiction. Had it been the commercial quantity, then the determination is otherwise. If it is smaller quantity, the norms will change. Learned counsel also submitted Musheer Ahamad @ Munna vs. State of U.P. [2013 (2) EFR 294], in which the Single Judge of the Allahabad High Court held that, "weight of substance recovered is in close proximity to weight provided for less than commercial quantity". In the instant case, the allegations are that the appellant was found in possession of 1.250 kgms and out of that quantity 24 grams each was sent to Laboratory for testing. However, during testing, it was found less than that weight. The Forensic report mentioned that it was around 20.4 gram. When there is difference in the approximate weight, then how can prosecution rely on the fact that initially it was 1.250 kg. It appears that they have under mis-conception and in order to show that their achievement for detecting a major case of commercial quantity, they became over zealous and without weighing it presumed it as commercial quantity. Nowhere it has been mentioned that it was either weighed at the time of arrest by the S.H.O. Or before the Remand Magistrate. Everywhere it was approximate and approximation was not found correct. The example is clear because that the Arresting Officer prepared specimen of 24 gram each but it was detected less than that, as per report of the Forensic Science Laboratory. Exhibit-ka-8 is the report which mentions that it was 20.4 gm. Therefore, there is suspicion that it may or it may not be more than one kilogram. When they have taken 48 grams, it was found approximately 20.4 grams each and that there was a difference of 3.6 gram in quantity of 24 grams and when they estimate it 1.25 kg then on arithmetical basis, assuming all the facts correct, weight will come over around about one kilogram only. However, they estimated the weight on assumption only. This was only approximation and not any certain assertion. Therefore, there may be doubt regarding quantity and admittedly the doubt will cast benefit in favour of the appellant. This fact is also confirmed from the testimony of P.W.-5. P.W.5 is the Head Constable Incharge of the Malkhana. He confirmed from Malkhana register that the case has been registered showing crime number 713 of 2006 and material was deposited in the Malkhana. During cross-examination, he refuted any knowledge regarding the weight of the recovered item. He stated that as per G.D-6, dated 24.04.2006, there is an entry regarding this recovery and he does not know anything other than that. That means even if it is presumed that it was recovered on the spot, nowhere it has been mentioned that what was the actual weight of the article recovered. Therefore, it is doubtful whether it was commercial quantity or not. The other argument is also very important which is apparent from the report of Forensic Science Laboratory (Exhibit Ka-8 ), which shows that article was recovered with the seal of 'MKT' on 08.05.2006, whereas C.O. Nanpara, Bahraich vide his letter dated 27.04.2006 mentioned that the article is being sent to the Laboratory with specimen immediately through bearer but it was received after a delay of so many days only on 08.05.2006 and then no explanation has been given. The important thing is that it bears the seal of 'MKT' and 'MKT' is none other than P.W.3, Head Constable, who has recorded the FIR and GD and registered the FIR (Exhibit Ka-4) at 4.30 am. He was not present at the spot but his seal has been affixed on the recovered item and the specimen sent to the Forensic Science Laboratory and this is confirmed from Exhibit Ka-8. Therefore, there is a strong doubt that whether the quantity actually recovered at the spot was commercial quantity or not because nowhere it has been weighed and at the time of placing it in the Malkhana it was not weighed and there it cannot be said that it was commercial quantity. At the same time, it would not be irrelevant to mention that there is a difference in estimated weight of sample that was being sent for examination to laboratory. Therefore, it creates a strong doubt that the quantity is commercial or not and naturally in case of doubt, the benefit definitely will go in favour of the appellant.
30. Therefore, I am of the opinion that since it has not been established on record that the quantity recovered was more than commercial, the learned Lower court has no jurisdiction to pass a sentence under Section 20 C of N.D.P.S. Act. The sentence can be passed only under Section 20 B of the N.D.P.S. Act.
31. Section 20 B of the N.D.P.S is reproduced below:-
"(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 fine which may extend to one lakh rupees."
32. The appeal is therefore allowed, in part and the sentence passed by learned Lower court is set aside. The sentence can only be passed under Section 20 B and the maximum sentence is up to 10 years rigorous imprisonment and fine may extend up to 1,00,000/- but there is no minimum. Considering the fact that the appellant is in jail since 24.04.2006, he is sentenced to imprisonment of seven and half years and fine of Rs. 10,000/- and in default of payment of fine he will have to undergo another one and half months imprisonment. The appellant is in jail w.e.f. 24.04.2006. He will be released after serving out the sentence of seven years and six months and fine of Rs. 10,000/- and in default of payment of fine he will have to undergo one and half month additional imprisonment. The registry of this Court is directed to inform the lower Court regarding the modification in sentence and also the Superintendent (Prison) to release the appellant, after serving out the sentence, if not wanted in any other case.