J. N. Sarma, J.
1. This appeal has been filed against the Judgment dated 20.1.1996 passed by the learned Special Judge at Cachar, Silchar in Special Case No. 16/93. By the aforesaid judgment, the learned Judge acquitted the respondent herein of the charge under Section 21, read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, hereinafter called as 'NDPS Act, 1985').
2. The prosecution story in brief is that PW 6 Nikhil Ranjan Choudhury, Inspector of Customs and Central Excise Silchar along with staff PW 1 Chayarani Dev Baidya, Lady Constable and PW 2 Ranjit Kumar Das, Inspector of Customs and Central Excise (Preventive) at Dholai Seized 310 gms of heroin from the possession of accused Mrs. Lalthangliani and Thangtei on 12.8.1993 at about 3 pm at Dholai when the said accused was travelling in Aizwal. Guwahati bound bus No. TRY 184 in Seat No. 30 and arrested the accused and also recorded her statements Exts. 3 and 4 and thereafter getting the said articles analysed through the Forensic Science Laboratory, the said witness had submitted the offence report against the accused under Section 21, read with Section 8(c) of the NDPS Act for illegal possession of the aforesaid contraband articles and sent up the accused for trial.
3. On the basis of the said report, a Special Case was registered and the charges were framed Under Section 21, r/w S.8(c) of the NDPS Act for illegal possession of the aforesaid quantity of heroin. The charge was explained to the accused, she pleaded not guilty and claimed to be tried. The prosecution examined 6 witnesses -
PW 1 Chayarani Deb Baidya, Lady Constable of Customs and Central Excise
PW 2 Ranjit Kumar Das, Inspector of Customs and Central Excise (Preventive)
PW 3 Kalipada Sarkar, a Photographer of Dholai
PW 4 Bidyut Ranjan Deb, Supdt. of Customs and Central Excise
PW 5 Rabindra Ch. Saha, Driver of the vehicle
PW 6 Nikhil Ranjan Choudhury, Inspector of Customs and Central Excise and complainant in the case.
As many as 26 number of documents were exhibited including the statements of the accused, i.e., Exts. 3 and 4. Ext. 12 is the report of the Forensic Science Laboratory which shows that the sample which was sent to them was heroin. Ext. 2 is the offence report.
4. The learned Judge after examining the accused under Section 313 Cr.P.C. framed the following point for determination -
1. Whether the accused charged in this case did illegally possess 310 gms of heroin while she was travelling from Aizwal to Guwahati on Seat No. 30 in Bus No. TRY 184 in contravention to the provisions of law laid down in Section 21, read with Section 8(c) of the NDPS Act as alleged by the prosecution ?
5. The learned Judge gave acquittal, inter alia, on the basis of the following findings/reasons ;
(i) that there was no compliance with Section 50 of the NDPS Act. Section 50 of the Act is mandatory and as such the non-compliance of it vitiated the trial.
(ii) there was no compliance with Section 52(a)(4) of the Act and he held that Section 52(a)(4) is also mandatory.
(iii) the articles were seized on 12.8.1993 and it was sent to Forensic Science Laboratory on 16.8.1993 and there is no explanation as to why there was delay in sending the articles for analysis and there is also no proper identification to the effect that the sample which was sent for analysis is the sample which was seized.
(iv) The accused did not understand English or Hindi properly save and except Mizo and because of that language barrier, the whole trial was vitiated, the trial was conducted in English, save and except recording of statements under Section 313 Cr.P.C. which was done through an interpreter.
6. Before we go to find out the correctness of the propositions made by the trial court, we must address ourselves to our power, we are exercising the power against the judgment of acquittal. There is no need to go to earlier decisions, but two recent decisions will be sufficient for this purpose.
1. AIR 2000 SC 1647 (Hart Ram and Ors. v. State of Rajasthan, Respondent) wherein the Supreme Court pointed out as follows :
'...... if two views on the evidence are reasonably possible, one supporting
the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, taken the other view. While re-appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trail Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.'
The next case on this point in the same volume is at page 2212 (Narinder Singh and Anr. v. State of Punjab) wherein the Supreme Court has pointed out as follows ;
'The High Court while considering the appeal against acquittal is not exercising any extraordinary jurisdiction, Its power to consider and decide the appeal against the judgment of acquittal is same as against the judgment of conviction. However, there are certain guidelines. One is that if there are two views on evidence which are reasonably possible, one supporting acquittal and the other indicating conviction, High Court in an appeal against judgment of acquittal should not interfere merely because it feels that it would as a trial court have taken a different view. High Court will certainly interfere if it finds that the judgment of acquittal manifestly erroneous and that the trial court has acted with material irregularity or its appreciation of evidence lacks coherence or it has made assumptions which are unwarranted or its evaluation of evidence is such as to shock the sense of justice and which has led to miscarriage of justice or its reasoning is unintelligible or defies logic or its conclusions are against the weight of the evidence.'
7. We proceed with the matter keeping in view that aspect of the matter. We have heard Mr. C. Choudhury, learned CGSC for Union of India and Mr. R P Sharma, learned counsel for respondent.
8. First let us take up the question of language barrier which has been found by the learned Judge to have vitiated the trial. Mr. Choudhury, learned CGSC draws our attention to the deposition of PW 2 at page 13 of the paper book. That is quoted below :
'Taking the packers in his hand Mr. Choudhury asked the accused in English to whom these packets belong and she replied in English that those belong to her. Then again Mr. Choudhury asked her what is the substance inside the packets. She replied in English that the substance is 'No. 4'. No 4 is the code name of heroin.'
Not even a single question was asked to this witness regarding correctness or otherwise of this statement made by her.
Further PW 6 at page 37 of the paper book deposed that the questions were put to this lady in English and she answered in English and even she gave her statement in her own hand writing in English. Further at pages 97 and 98 of the paper book, there are certain questions put to this lady when she was examined by the Custom Officer wherein she admitted that she was in Delhi from 1989 to 1991 and she was taking training in Hotel Business and she also worked as a Sale Girl at Ruchi Corporation Canace Place, New Delhi for which she received Rs. 2000 per month as salary. That shop as stated by her used to deal in garments, sari and T-shirts, etc. She also admitted that she was in the institute of Hotel Management. So, from all these it is crystal clear that this lady knew English and language was not a barrier and it did not cause prejudice to the accused and there was no miscarriage of justice on that count and it did not vitiate the trial as held by the learned Judge. He discarded Exts. 3 and 4 on this count, this is nothing but perverse. But whether Exts. 3 and 4 are admissible in evidence and have been legally proved and what is their value that we have not decided as of now and that aspect of the matter will be decided at a later point of time.
9. Regarding the finding of the learned Judge on Section 50 of the Act, one thing that we should bear in mind that in the instant case, the packet was not recovered from the body of the lady, it was found in her seat in the bus and she was sitting over that packet. So, the question is that whether Section 50 shall apply in such a situation.
10. Mr, Choudhury, learned CGSG places reliance on the following decisions :
1. (2001) 3 SCC 28 (Gurbax Singh v. State of Haryana) wherein the Supreme Court after considering its earlier cases in (1999) 8 SCC 257, (1999) 6 SCC 172 (1996) 1 SCC 288 laid down the law as follows :
'On its plain reading, Section 50 would come into play only in the case of a search of a person distinguished from search of any premises etc.'
The Supreme Court further pointed out 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. The Supreme Court further pointed out that in view of the Constitutional Bench decision Section 50 is mandatory. But the Supreme Court pointed out in that decision itself that provisions of Sections 52 and 57 are directory and violation thereof would not ipso facto violate the trial or conviction. However, investigating officer cannot totally ignore these provisions. Such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. Investigation being faulty in such a situation, in appropriate cases, a person may get the benefit depending on situation.
The next case relied on by Mr. Choudhury, learned CGSC is (2000) 10 SCC 380 (Kanhaiya Lal v. State of M. P.) wherein it was pointed out that where the contraband (opium) was recovered not from the person of the accused but from a bag which he was carrying, non-compliance with the requirements of Section 50 shall not vitiate his conviction.
The next case is (2000) 9 SCC 541 (Birakishore Kar v. State of Orissa). The facts of that case virtually are same with the facts of the present case. In that case also the plastic bag on which the person was found lying in the train compartment contained 10 kg of poppy straw and the plea was taken that the requirements of under Section 50 were not complied with. The Supreme Court pointed out that the said section comes into play only in the case of search of a person and not in respect of the search related to any premises etc. In that case the appellant was travelling by Howrah-Puri Sri Jagannath Express on the night between 18.9.1991 and 19.9.1991 and when the train had arrived at Platform No. 1 of the Balasore Railway Station and it was searched by PW1 and the officers accompanying him the appellant was found lying on a plastic bag in one of the compartments of that train. The said plastic bag was then seized and on verification it was found containing 10 kg of poppy straw and the defence was taken that the said plastic bag was not found from his possession. It was found by the trial court that the appellant was in possession of that plastic bag. The another contention which was raised was that the mandatory requirement of Section 50 of the Act was not complied with. The Supreme Court relying on its earlier judgment in (1999) 6 SCC 172 (State of Punjab v. Baldev Singh) again reiterated that Section 50 of the Act shall come into play only in the case of search of a person as distinguished from search of any premise etc. So, the finding of the learned Judge that the conviction cannot be given as there violation of Section 50 is not tenable and that shall stand quashed being erroneous and against the law as laid down by the Supreme Court.
11. Mr. R P Sharma, learned counsel for respondent places reliance on the following decisions :
1. (1996) 7 SCC 288 (State of Punjab v. Jasbir Singh and Ors.) wherein it was pointed out that the provision of Section 50 of the Act is mandatory. Searching Officer, when acts on prior knowledge of the contraband, is obliged to inform the person to be search of his right to be taken to the nearest Magistrate or Gazetted Officer. In that particular case the trial court rejected the evidence of the police officer on the ground that he did not take in writing from the accused that they had no objection to search by police officer and that they were informed of their right and they waived their right to be searched in the presence of a Gazetted Officer and that was upheld by the Supreme Court holding that there can be no waiver of this right. But in the next paragraph it was pointed out that the evidence collected during investigation in violation of the statutory provision does not become inadmissible and the trial on the basis thereof does not get vitiated. Each case must be considered on its own backdrop
2. (1997) 7 SCC 88 (C. All v. State of Kerala). That also was a case where recovery was made from the body of the person and it was pointed out by the Supreme Court that Section 50 of the Act is mandatory and there being non-compliance with Section 50, the trial shall stand vitiated. This case is of no help to the respondent.
12. Mr. C. Choudhury, learned CGSC submits that the Section 42(2) of the Act is also directory in nature. That Section 42(2) is quoted below :
'Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior,'
In support of this contention Mr. Choudhury, learned counsel places reliance on (2001) 6 SCC 692 (Sanjan Abraham v. State of Kerala). This is a decision by three Judges of the Supreme Court. The Supreme Court pointed out as follows :
'(a) It is the duty of the officer concerned to take down in writing any information under Sub-section (1) and to send a copy thereof to his immediate superior official under Sub-section (2) but when the officer concerned was on patrol duty and on receiving the information that accused was selling contraband drugs at a particular place he immediately rushed there and apprehended him, compliance with the requirements of Sub-sections (1) and (2) would have delayed the trapping of the accused which might have led to his escape. Hence on facts it was held that there was no violation of Section 42.
(b) Whether prosecution complied with mandatory provisions of the Act should be considered pragmatically. Though the mandatory provisions should be strictly complied with but if that causes delay in trapping the accused which may lead to his escape, strict compliance need not be insisted upon. Interrogation of Statutes whether mandatory or directory, pragmatic approach should be applied.
(c) If substantial compliance with it is made it would not vitiate the prosecution case.'
This judgment being by a larger Bench of the Supreme Court, that shall hold the field.
13. Mr. R. P. Sharma, learned counsel submits that there is another judgment of the Supreme Court by three Judge reported in (1998) 8 SCC 655 (Mohinder Kumar v. State, Panaji, Gao), In that case the Supreme Court pointed out that non-compliance with the mandatory requirements of the provisions vitiates the conviction. Section 42 was not separately considered in that case. That was considered in juxtaposition with Section 50. Be that as it may, we are bound to follow the later judgment of the equal strength of the Supreme Court. Accordingly we hold that Section 42(2) is directory and non-compliance with it did not vitiate the trial as held by the learned trial court. That fining of the learned Judge is an erroneous one and shall stand set aside.
14. The next question is that whether Ext. 3 and 4, the statements made by the accused before the Customs Officer are admissible in evidence. Mr. Sharma, learned counsel submits that these are not admissible in evidence and as such, these statements cannot be utilised and in support of it, he places reliance on AIR 2001 SC 2422 (Abdul Rashid v. State of Bihar) wherein the Supreme Court pointed out the distinction between the Central Excise Officer exercising power under the provisions of Central Excise and Salt Act and an Excise Officer under the Bihar and Orissa Excise Act and ultimately came to the conclusion that the Deputy Superintendent of Customs and Excise is not a Police Officer for the purpose of Section 25 of the Evidence Act and therefore, statements made before the said officer of the Central Excise and Customs Department shall be admissible in evidence. That shall not apply with regard to the Bihar Orissa Excise Act where the Superintendent of Excise is deemed to be Police Officer. So, the objection raise by Mr. Sharma, learned counsel that the statements made by the accused, i.e., Exts. 3 and 4 are not admissible in evidence being hit by Section 25 is not admissible in evidence being hit by Section 25 is not acceptable at all, but Mr. Sharma is right in contending that Exts. 3 and 4 suffers from other infirmities meaning thereby that it was not proved that the accused made these statements voluntarily, later on it was retracted and there is evidence to show that it was copies by accused from a written script by the officer. So, Exts. 3 and 4 cannot be accepted to be utilised in this particular case to convict a person, as they do not inspire confidence. But the law is clear that a statement made before the Customs and Excise Officer is admissible in evidence it is not hit by Section 25 of the Evidence Act as held by the trial court.
15. Mr. C. Choudhury, learned CGSC in support of his contention that benefit of doubt should not have been given to the accused relies on two decisions :
1. AIR 1972 SC 975 (Himachal Pradesh Administration, appellant v. Om Prakash Respondent) wherein the Supreme Court pointed out that the prosecution must prove its case against an accused beyond reasonable doubt by sufficient credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt, the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fight shy-though unwittingly it may be or is afraid of the logical consequences, if that benefit was not given or as one great Judge said it is 'not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism.'
2. (1973) 2 SCC 793 (Shivaji Sahabrao Bobade v. State of Maharashtra) where regarding the benefit of doubt the same principles was reiterated by the Supreme Court.
16. Next let us take up the question whether the delay in sending the sample seized vitiated the trial. This question came up for consideration in (1993) 1 Crimes 508 (Brown Nicholas William Jonathan v. State of Goa), That was a case before the Division Bench of Bombay High Court. That also was a case under the same Act, i.e., NDPS Act, 1985. There the prosecution failed to prove that what was found on the person of the accused was the very substance which was sent for analysis. Identity of the sample seized on search and the sanctity of the sealing were not preserved. In a casual and unsatisfactory manner the samples of charas were sealed. Accused in such a situation was entitled to the benefit of doubt. The judgment and order of conviction was set aside by the High Court on that ground.
In this particular case, the article was seized on 21.12.1990 and it remained with the investigating officer till Monday the 24th December, 1990 and that delay also was considered by the Bombay High Court to be fatal. We agree with the view of the Bombay High Court and we hold that if there is unexplained delay in sending the sample for analysis and if it is not establishing that the article which was seized has been sent for analysis the accused should get the benefit of it. It is that benefit which we are giving to the accused and on this count, we uphold the order or acquittal and the other grounds set forth by the learned Judge as indicated above shall stand set aside and quashed as erroneous and not legal.
17. With the above directions and observations, this appeal stand allowed.