M.S. Parikh, J.
1. 'Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a sick society and harmful culture....'
'The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice.'
Both the aforesaid dicta of the Constitution Bench, in State of Punjab v. Baldev Singh - (1999) 6 Supreme Court Cases 172, have to be kept present before the eyes, not only by the Courts, but by the Investigating Agencies too. They have also been read before us in this Appeal, arising from the Judgment and Order dated 3rd July 1995, rendered by the learned Sessions Judge, Surat, in Sessions Case No. 121 of 1994. The appellant herein, being the accused in the Sessions Case, came to be charged and tried for being found in possession of 1800 Grams of charas, without permit, on the platform portion of a shop in the name and style of Anisha Auto Parts in Nanwala Complex, Hoti Bungalow area, Surat.
2. It was the prosecution case, before the learned Sessions Judge, that on 15th March 1994 during the evening time, Police Inspector of Chowk Bazaar police station, Mr. Mohammedsadiq Suleman Khara was nearby Variavi Market Police Chowky when he received the information that one person wearing a shirt with cream colour design and a pant with black checks was sitting at the aforesaid place with charas and was waiting for some one. This resulted in calling two panch witnesses, explaining them the information and proceeding towards the place of incident in the company of PSI Mr. Vyas, Mr. M.R. Chavda, Mr. Rahul, Mr. Borse, Head Constable Jayvant, and police constables, Ramchandra, Rajendrasinh Jagatsinh. On seeing the place it was noticed that the person with the description as aforesaid was sitting on the platform (Otta portion) of Nanwala Complex with a handbag placed on his shoulder resting on his legs. He was therefore asked to wait and tell his name and address. He informed that he was Ravishankar Bhagwatiprasad Mishra, the accused. He was informed about the information received by the aforesaid officer. He was asked whether he wanted to be searched in presence of a Magistrate or a Gazetted Officer and he replied that he did not want to do so. Thereupon all the persons including the P.I. were searched by the panch witnesses in the presence of the accused and nothing could be noticed or found from their person. On a search being carried out on the person of the accused, it was found that there was a plastic bag in the cotton handbag of yellowish colour. From the said polythene bag, a substance, blackish in colour and smelling charas, was noticed. Therefore weights and measures were called for from the nearby Provision Store and on weighing the substance, it was found that the substance was 1800 grams in weight. The accused informed that he did not have any pass or permit for keeping the substance with him. In the meantime, one Mr. Champaneria of Forensic Science Laboratory, Surat reached the place of incident and upon seeing the substance he informed that apparently it appeared to be charas and that it should be sent to Forensic Science Laboratory, Ahmedabad, for its analysis. The substance was in the form of small and big sticks, oval in shape. A Panchnama with regard to the incident was made. A paper slip containing the signatures of the panch witnesses and the Police Inspector was placed in the polythene bag along with the substance which was found therefrom. That was wrapped in a plastic bag and placed in the cotton bag. Tieing the strings on the cotton bag and affixing the paper slip containing the signatures of the panch witnesses and the Police Inspector, seals were affixed. Seals were affixed at three different places and they were of Police Inspector, Chowk Bazaar Police Station. After informing the higher authority, the Police Inspector, sent complaint to the concerned police station. A Fax message was also sent to the State CID Crime Branch, Ahmedabad. Soon thereafter the substance so sealed was sent for its chemical and forensic examination at the Forensic Science Laboratory, Ahmedabad and upon the receipt of the report from the said laboratory stating that the substance was charas, the case was sent for trial before the learned Sessions Judge. At the conclusion of trial, the learned Sessions Judge convicted the accused (appellant herein) of the offences punishable under Section 20(b)(2) of the Narcotic Drugs and Psychotropic Substances Act, (`NDPS Act' for short), and sentenced to undergo rigorous imprisonment for a period of 12 years with fine of Rs. 100000, in default to undergo rigorous imprisonment for a period of one year. This conviction and sentence have been subjected to challenge in this appeal.
At this stage, we might note the defence of the accused as Mr. N.M. Kapadia, learned advocate appearing for the accused, before us, read the same. The written defence statement was given before the learned Sessions Judge after the examination of the accused under Section 313 of the Code of Criminal Procedure, 1973, was over. It has been asserted by the accused that the accused was falsely implicated. He has referred to his bail application and affidavit, Exhibits 31 & 32, where, at the earliest, he came out with the case that on account of real offender Dinesh Tiwari and one more unknown person having escaped, the accused has been falsely implicated, only on doubt, on account of the fact that the accused was treated as unknown person accompanying said Dinesh Tiwari. Accordingly, on 12-3-1994, the accused was called and kept in police custody. Thereafter one Harnarain Pandey was also detained as a suspect and his statement was recorded. According to the accused he was believed to be the main offender in respect of the offence in question. It was asserted that he was probably arrested on 15-3-1994 and thereafter he was produced before the concerned Magistrate on the next day. The cause of his arrest was made known to him. After obtaining order of remand from the Court Dinesh Tiwari was apprehended, however, since there was no evidence against him he was discharged. The accused has denied the incident in question. He has asserted that the alleged complaint was recorded subsequently and that the muddamal charas was thrown away by Dinesh Tiwari and another unknown person and they ran away. The police used to visit the house of the accused in search of Dinesh Tiwari, and since the accused was staying with Dinesh Tiwari he was taken to the police station for rendering assistance to the police in tracing out said Dinesh. Inspite of the fact that order of remand was obtained from the court, the accused was not taken to Uttar Pradesh, but the police went there in a private vehicle with Harnarain Pandey and has falsely implicated the accused as the main offender with regard to the substance in question. It is his case that since Dinesh was staying with him he was falsely implicated on mere presumption about he being an accomplice of Dinesh.
3. The learned Sessions Judge examined the prosecution evidence and the defence and upon appreciation of evidence came to the conclusion that the incident in question did happen and the accused was vitally concerned in the incident that happened. The prosecution examined Rameshbhai Dhamjibhai Patel PW 1 Ex.13; Ghanshyambhai Amarsinhbhai Patel PW 2, Ex.15; Maheshchandra Chhabildas Champaneria, an Expert from Forensic Science Laboratory at Surat PW 3, Ex.16; Pravinbhai Balubhai PW 4, Ex.18 who was concerned with weighing muddamal charas and who was treated hostile; Indravadan Balkrishna Vyas, PSI, PW 5, Ex.19; Mohammed Sadiq Suleman Khara, P.I., PW 6, Ex.20; Bipinbhai Davda, Expert from the Forensic Science Laboratory PW 7, Ex.23; Mahendrasinh Ratnasinh Chavda, the Investigating Officer, PW 8 Ex. 29. The prosecution also placed reliance upon Panchnama Ex. 14; Complaint Ex.21; F.S.L. Report Ex.24; Botanical report Ex.25; the rough notes of the Expert from FSL, Ex.27; and the worksheet, Ex28.
4. Mr. Kapadia read the evidence of all the aforesaid witnesses, more particularly the panch witnesses, PSI Indravadan Balkrishna Vyas, P.I. Mohammed Sadiq Suleman Khara, Mahendrasinh Ratnasinh Chavda and the Complaint as well as the Panchnama before us for making good following of his submissions.
5. In the first place, he canvassed for non-compliance of Section 50 of the NDPS Act. He read before us a recent decision of the Hon'ble Supreme Court in the case of State of Punjab vs. Baldev Singh - (1999) 6 SCC 172. From this decision, he submitted that what the searching officer is required to inform the accused when his person is to be searched is that the accused has the right of being searched in presence of either a gazetted officer or a Magistrate and if the accused would like to be so searched. It is no doubt true that at various places in the aforesaid decision, the word 'right' finds its place. Even in the ultimate conclusion, the word 'right' appears. In our considered opinion, it is by way of interpretational process that the Apex Court really appears to have used the word 'right' which would flow from the provision of Section 50. Section 50 would read as under:
50. 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 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.
(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.'
The provision does not speak about informing the accused that the accused has a right to be searched in presence of a nearest gazetted officer or a nearest Magistrate. It speaks about informing the accused as to whether he would require to be searched in presence of a nearest Gazetted officer or a nearest Magistrate. By our judgment rendered on 6th September 1999 in Criminal Appeal No. 621 of 1995 in the case of Salimuddin alias Jugan N. Ansari v. State of Gujarat, we had an occasion to deal with the aforesaid decision of the Hon'ble Supreme Court at length in the context of the submission regarding partial compliance of Section 50 of the NDPS Act when option is given by the searching officer to the accused for being examined in presence of a gazetted officer (or a Magistrate) and/or of both the officers. After dealing with number of decisions of the Apex Court, more particularly the decision in the case of Raghbirsingh v. State of Haryana - 1996 SCC (Criminal) 266, and State of Punjab v. Labh Singh - 1996 SCC 103, we drew the attention of Mr. Kapadia about what the Apex Court has said in Raghbir Singh's case (Supra) in Paras 10 and 11 of the citation. We might reproduce the same;
'10. Finding a person to be in possession of articles which are illicit under the provisions of the Act has the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to severe punishment. It is, therefore, that the Act affords the person to be searched a safeguard. He may require the search to be conducted in the presence of a senior officer. The senior officer may be a Gazetted Officer or a Magistrate, depending upon who is conveniently available.'
'11. The option under Sec.50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate. The use of the word 'nearest' in Sec.50 is relevant. The search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available, Gazetted Officer or Magistrate.'
Mr. Kapadia, however, concentrated upon his submission about the word 'right' of the accused of being searched in presence of both such officers or either of them as stated above. We are in agreement with the submission of the learned APP that it is the interpretational process of Section 50 of the NDPS Act which has brought about the conclusion that the accused has such a right and not that he has to be informed that he has such a right. In our considered opinion, it would be sufficient if the accused is informed about his being searched and examined in presence of a senior officer such as gazetted officer or a Magistrate.
6. Mr. Kapadia read before us the evidence of the Investigating Officer, Mohammed Sadiq Suleman Khara, where he has testified about having asked the accused whether he wanted to be searched in presence of a Magistrate. But after going through the Panchnama Ex.14, it could be noticed that both the options were given and therefore that question does not arise in the present appeal. Even if such question arises, in our considered opinion, the same would be covered by our aforesaid decision in Salimuddin's case (Supra).
7. Mr. Kapadia then referred to Section 41(2) of the NDPS Act and submitted before us that the provision of law appearing in the said Section has not been followed by the investigating agency/searching authority. We have gone through the said provision, which would read as under;
41. Power to issue warrant and authorisation.
(1). xxx xxx xxx xxx
(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department or a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place.'
Referring to the aforesaid provision, Mr. Kapadia pointed out that the words 'that any person has committed an offence punishable under Chapter IV' are missing in Section 42. He therefore submitted that the search could not have been carried out after the Sunset. We do not have any evidence or statements before the learned Sessions Judge that the accused came to be searched after Sunset. It is true that at and after 7.00 O'clock in the evening the incident as a whole had taken place. However, what is spoken to in the aforesaid provision is that any officer of a gazetted rank of the department stated in the provision may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place. In the first place, factually the argument would not be available to Mr. Kapadia. The searching officer in this case was a gazetted officer, namely the Police Inspector. In the second place, the argument would not be available bearing in mind the search contemplated under the provision is that of a building, conveyance or place. Therefore, the submission of Mr. Kapadia that in the absence of authorisation for carrying out a search by day or by night, the search of the person of the accused carried out at and after 7.00 p.m. on the day of the incident would be illegal will not hold good.
8. Mr. Kapadia at this stage submits that he would also press into service the provision of Section 41(2) of the NDPS Act for submitting that the information received with regard to commission of offence under the relevant provision of the NDPS Act should be recorded in writing in the first place. There are various situations which would arise in respect of receipt of information. When the P.I., Mr. Mohammed Sadiq Suleman Khara and his colleagues were on a prohibition patrolling, suddenly the information in question was received. There would not be time enough to record in writing the information and send it to the higher officer in advance. The whole effort of locating or preventing the crime would be frustrated. In this connection, we might refer to the conclusions of the Apex Court in State of Punjab vs. Balbir Singh (1994) 3 SCC 299 = 1994 SCC (Cri.) 634. The said decision has been relied upon by the Constitution Bench in Baldev Singh's case (Supra). We might state below the ultimate conclusions reproduced in Baldev Singh's case.
'25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows:
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by any one other than such officers, the same would be illegal.
(2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.
(2-C) Under Section 42(1) the empowered officer if he 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.
(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
(4-A) If a police officer, even if he happens to be an `empowered' officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.
(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of a person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. (emphasis ours)'
It might be noted from Conclusion No.3, that under Section 42(2) of the NDPS Act, such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision it would affect the prosecution case. However, if there is delay, it will have to be seen whether such delay is undue or whether it has been explained or not. The Apex Court has also spoken of chance recovery in Conclusion No.1 and attending to the procedure under the NDPS Act from that stage onwards. In the present case, it has been placed in evidence that even though Mr. Khara was a Police Inspector (Gazetted Officer), he had sent necessary information to his superior. He had an occasion to record every thing in writing in the form of the complaint and the Panchnama at or soon after the occurrence of the incident. Thus, apart from the fact that a superior officer who was an empowered officer had an occasion to search the person of the accused, he had recorded the whole incident in writing containing the fact regarding information which he received while on prohibition patrolling. We reiterate that provisions of Section 41(2) and 42(2) would not be applicable to the present case inasmuch as this is not a case where a building or conveyance or a private place was required to be searched. This is a case of a person being searched when he was sitting on a platform portion (Otta portion) of a building styled as Hoti Bungalow in Nanwala Complex, near Anisha Auto Parts. The Apex Court has noted what portion of the provision contained in the aforesaid Section is mandatory and what portion of the provision contained therein is directory. We need not detain ourselves in discussing that part of the submission. Suffice it to say that in the facts as noted hereinabove, it was not necessary to record in writing the grounds of the information beforehand and to forward such information forthwith to the immediate officer superior else it might have frustrated detection of such a serious criminal activity. The result is that this argument would fail.
9. It has been submitted that if P.I., Mr. Mohammed Sadiq Suleman Khara or the concerned police officer accompanying him could send a yadi to prosecution witness Maheshchandra Chhabildas Champaneria, Ex.16, an Expert from the Forensic Science Laboratory, Surat, the searching officer or any accompanying police officer would have recorded information in writing and sent a yadi to the superior officer. We find no substance in this argument. Any such availing of the service of the expert from FSL, Surat would be a part of on the spot examination of the substance for finding out whether it was the offending substance under the NDPS Act. There is nothing wrong in the concerned police officer availing of services of such an expert when he was available immediately. We might refer to the evidence of Maheshchandra Chabildas Champaneria, Ex.16. He has deposed that when he was at home on 15th March 1994 he received a yadi at 8.30 in the evening for going to the place of incident. He accordingly went there. At that time the Panchnama was in progress. P.I. had shown the muddamal sticks to him. Upon smelling the same the expert felt that it was a substance like charas. He therefore instructed the police authority to send the same to FSL, Ahmedabad. The witness was shown the muddamal sticks in the Court and he deposed that the said sticks were the sticks which were found from the accused on the spot. He also identified the accused. In his cross-examination, he admitted that he had brought the yadi and he produced the same in the court. He admitted that he did not make any writing with regard to his on-the-spot examination of the offending substance. We find from this evidence that it would lend a great deal of support to the prosecution story as noted hereinabove. That apart, we would reiterate that there would be nothing wrong on the part of the P.I. to avail of the services of an expert who was available for an apparent examination of the substance so that further proceedings can be undertaken in that direction. It has appeared on the record that immediately on the same day, the muddamal articles were sent for examination by the expert in FSL at Ahmedabad. It might be noted here that, that exercise must have been undertaken during night time on 15th March 1994, the day of incident. It has come in evidence, both documentary as well as oral, that the muddamal article reached, in duly sealed condition, the FSL, Ahmedabad on 17th March 1994. Bearing in mind the fact that the intervening day must have passed in transit, the submission, that what happened during the intervening day has not been explained by the prosecution throughout the trial and that would vitiate the trial, cannot be accepted. Suffice it to say here that the police authorities acted quite swiftly in the matter and there is no room for raising suspicion over the prosecuting authorities. The submission therefore that just as the expert from FSL, Surat could be informed in writing, the PI carrying out the search could also have informed in writing the information he received to his superior officer and in absence of recording such information in writing beforehand, as aforesaid, would vitiate the trial and conviction cannot be accepted.
10. Mr. Kapadia then has pressed into service, Section 55 of the NDPS Act by submitting that PSO (Police Station Officer) of Chowk Bazaar police station has not put his separate seal on the muddamal article. Mr. Kapadia's attention was drawn to our aforesaid recent decision in Salimuddin's case (Supra),where we had an occasion to deal with the provision of Section 55 of the NDPS Act relying upon a Bench decision of this Court in the case of State of Gujarat v. Abdul Rashid Ibrahim Mansuri - 1990 (2) GLH 398. The Bench observed :
'41. Mr. Malik, learned Advocate for the respondent, contends that the provisions of Sections 52 and 55 are not complied with inasmuch as the Police Station Officer has not put his seal on the muddamal packets and subsequently the muddamal articles were taken to the Dudheshwar Crime Branch Police Chowky, from where P.S.I., Vaghela has taken the same to the Forensic Science Laboratory. Under Section 52, the Officer arresting the person has to inform him of the grounds of arrest and in case warrant is issued by the Magistrate and on the strength of the warrant, such person is arrested, then such person should be forwarded to the Magistrate. Sub-section (3) of Section 52 provides that every person arrested and articles seized under sub-section (2) of Section 41 or Section 42 or Section 43 or Section 44 shall be forwarded without unnecessary delay to the Officer in charge of the nearest Police Station or the Officer empowered under Section 53. Under sub-section (4) of Section 52, the authority or the Officer, to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article. So far as dealing with such person is concerned, the Officer in charge of the Police Station may either secure police custody remand or send such person to judicial custody under the provisions of the Criminal Procedure Code. So far as the articles, which are produced before the Police Station Officer is concerned, they are required to be dealt with as provided in Section 55 of the Act. Section 55 provides that the Officer in charge of the Police Station himself take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under the Act within the local area of that police station and allow any Officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or take samples of and from them and all samples so taken are also required to be sealed with the seal of the Officer in charge of the Police Station. Sections 52 and 55, NDPS Act deal with the situations after the seizure and arrest. The articles are required to be sealed by the Police Station Officer with a view that they may be protected properly and may not be tampered with. In case such articles are produced before the Officer in charge of the Police Station, the Officer producing such articles should affix his seal to such articles or take samples of such articles. In case the samples are taken, such samples are also required to be sealed with the seal of the Officer in charge of the Police Station. The seal of the Officer in charge of the Police Station is to be affixed only on the samples which are taken. It is not necessary that in case the articles are brought and delivered to the Officer in charge of the Police Station by the authorised Officer seizing such goods, then again the second seal of the Officer in charge of the Police Station should be affixed on it. Even when the articles are produced, the Police Station Officer has to allow the Officer seizing the articles or the Officer deputed by such Officer to affix his seal.
From the aforesaid observations, it might be noted that the seal of the officer was to be affixed only on the samples which are taken. It is not necessary that in case the articles are brought and delivered to the officer-in-charge of the Police Station by the authorised officer seizing such goods, then again the second seal of the Officer-in-charge of the Police Station should be affixed on it. This is what the Bench has observed, on consideration of provisions of Section 55 of the NDPS Act. In the present case, the box containing the muddamal article duly sealed came to be handed over to the police station officer who had preserved the same in the same condition and the whole of the muddamal duly sealed was sent to the FSL. Thus, the present case would be squarely covered by the decision in Abdul Rashid Ibrahim Mansuri's case. The Bench has further observed that, in case the Officer seizing the articles has affixed the seal at the place of seizing the articles or at any other place and after that, the articles are delivered to the officer in charge of the Police Station, it will not be necessary for the Officer in charge of the Police Station to affix his seal. Section 55 does not provide for any such procedure. We might note that similar is the present case but on a better footing inasmuch as on the same day the muddamal article has been arranged to be sent to the Forensic Science Laboratory and there was no action of separating the samples from the muddamal article and sending the same to the FSL.
11. We might then deal with the submission of Mr. Kapadia, flowing from the reading of Section 57. We might quote Section 57:-
'57. 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.'
Mr. Kapadia submitted that although there is oral evidence, the prosecution has not placed on record the actual report. We find no substance in this argument. We would like to refer to the evidence of P.I., Mohammed Sadiq Suleman Khara, PW 6, Ex.20, in this connection. He has deposed in this connection that he informed the incident to his superior officer by sending intimation to the control room on telephone. He has also deposed that during the same night he sent a fax message in the prescribed form to State CID (Crime), Ahmedabad. The matter was not carried any further by calling upon the prosecution to produce the report sent in writing by the Control Room, where P.I., Mr. Khara had sent telephonic information immediately for sending information in accordance with law to the superior officer. In our considered opinion, it cannot be said in the facts of the case that there is non-compliance of provision of Section 57 of the NDPS Act. Besides, we do not find any consequence about non-compliance of this provision in-built in the provision. With this observation, we do not accept the submission made by Mr. Kapadia arising from this provision.
Mr. Kapadia placed reliance upon a decision of Madhya Pradesh High Court (Indore Bench) in the case of Mohan Lal v. State of M.P. 1991 (2) Crimes Page 81. The facts are quite distinct and alarming in this decision. The prosecution story there was that in the night between 13-14th September 1997 accused was travelling on train No.111 Dn. going to Bhopal from Badodara via Ujjain and was lying on the lower berth of two-tier-coach. Two police constables Kaluram Parmar (PW 2) and Hari Narayan (not examined by the prosecution) were on Guard duty in the train. The two constables on seeing red-green packets on the chest of the accused grew suspicious and questioned and searched the accused in presence of other co-passengers, Ramesh (PW 4) and Prakash (not examined by the prosecution). On questioning the accused and searching him the two constables found that he was carrying opium. The two constables made the accused to get down from the train at Tarana Road Railway Station and then in the morning came back to Ujjain in a goods train. At Ujjain they produced the accused before S.O. Kaluram Parmar, constable lodged first-information report, Ex.P.2 which was written down by Lakhansingh Chouhan. It was recited that he effected seizure of the opium from the accused and samples were taken out and sent for Chemical examination. Chemical examiner's report Ex.P.1 opined that each of the three samples sent to him on qualitative and quantitative analysis was found to be opium within the meaning of the Act. In the background of these facts, the learned Additional Sessions Judge after holding trial found the accused guilty and convicted and sentenced him. One of the submissions which we note from Para 8 of the citation was that there was no material on the record of the case to show any compliance worth the name of Section 57 of the NDPS Act. Such an infirmity has been not brought on record in the present case. Instead the facts are, as noted above, quite distinct and different from the facts in Mohan Lal's case (Supra). We therefore do not find any impact of the submission flowing from Section 57 of the NDPS Act on the trial and resultant conviction of the accused.
Mr. Kapadia submitted that investigation was carried out by the Investigating Officer who accompanied the raiding party headed by P.I., Mohammed Sadiq Suleman Khara. He was Mr. Mahendrasinh Ratnasinh Chavda, PW 8, Ex.29. He made this statement by referring to other evidence, where the surname `Chavda' surfaces. On the assumption that that Chavda is the same person as PW 8 Ex.29, we proceed to consider the argument of Mr. Kapadia. In the first place, we would refer to a decision of the Rajasthan High Court in the case of Nathiya & another v. The State 1992 Cri.L.J. 2342 = 1992(1) Crimes Page 537. This is what has been said by the learned Single Judge in Para 11 of the citation;
'11. I have considered the rival contentions and have perused the record of the trial court. One glaring feature of the case is that P.W.5 Hamir Singh was the person who is said to have recovered the contraband charas from the two appellants. It is surprising that he himself investigated into the offence. Justice and fair play require that the investigation should have been carried out by an independent officer, who was not in any way a party of the recovery proceedings. This principle is no longer res-integra. In the case of Ronald Markas Goonthar v. State of Rajasthan, it was observed:-
'When S.H.O. seizes drugs and sends F.I.R. to Police Station, it is expected that investigation should be by any other agency, may be of superior rank.'
In the case of Rana Ram v. State of Raj., decided on August 11, 1989, it was observed:-
'The learned counsel for the appellant argued that Padam Singh, the S.H.O., was the person who caught the appellants, recovered the opium and who was the Investigating Officer in this case. He should not have investigated the matter because he was a witness to the recovery. This is an infirmity in the prosecution case. Padam Singh should have handed over the investigation of this case to some other police officer.'
It was held:-
'The arguments of the learned counsel has great substance. S.H.O. Padam Singh, who had recovered the opium in this case and lodged the report, should not have investigated the matter. This is an infirmity in the prosecution case.'
In Bhagwan Singh v. The State of Raj, the Supreme Court has held:-
'Investigation by a Head Constable who was himself the person, to whom bribe was alleged to have been offered and who lodged the F.I.R. as informant or complainant. This was an infirmity which was bound to reflect on the credibility of the prosecution case.'
This principle was followed in Banshi Lal v. The State of Rajasthan decided on 21.2.1990 by Hon'ble Mr. Justice S.M. Jain, as he then was. In that case the appeal of the appellant was accepted on this very short ground viz. that the case had been investigated into by the very person who had made recoveries and hence the investigation was bad in law, and the conviction and sentence of the appellant for the offence under Section 8/18 of the Act were set aside. I am, therefore, of the view that in this case, the investigation suffers from the basic infirmity, in as much as the officer recovering the contraband charas was the self-same person who had investigated into the case, the investigation was basically bad and reflects upon the credibility of the investigation. The Director General of Police would do well to issue proper instructions to all Investigating Officers in the State to ensure that this basic principle is not flouted while conducting investigation.'
We might note that the learned Judge has referred to a decision in Bhagwan Singh v. The State of Rajasthan reported in AIR 1976 S.C. 985. However, in that case investigation was carried out by a Head Constable who was himself the person, to whom bribe was alleged to have been offered and who lodged the F.I.R. as informant or complainant. In the present case, the complaint is by the searching officer, Mr. Mohammed Sadiq Suleman Khara, P.I., P.W. 6, Ex.20. Even if Mr. Mahendrasinh Ratnasinh Chavda, PW 8 Ex.29 was present at the time of the incident carried out the subsequent investigation with regard to the other accused, as would appear from his evidence, it would neither affect the prosecution case nor cause any prejudice to the accused. It might be noted that Mr. Mahendrasinh Ratnasinh Chavda is not the self-same person searching the accused and attending to the incident as a searching officer. This fact cannot be disputed. Having gone through the evidence as a whole, we find that the alleged infirmity would hardly reflect on the credibility of the prosecution case. Even in the case before the Rajasthan High Court, P.W. 5, Hamir Singh himself who was said to have recovered the contraband charas from the two appellants, investigated into the offence. In that light, it has been observed that, 'Justice and fair play require that the investigation should have been carried out by an independent officer, who was not in any way a party of the recovery proceedings'. The stress is on investigation being carried out by the self-same person who recovered the contraband charas from the accused.
Mr. Kapadia, then, submitted that the samples have not been drawn by the expert in FSL in the required quantity from the muddamal charas. According to his submission, at least 24 Grams of charas should have been taken from each of the sticks (90 in number) and that would have rendered the compliance of the provision contained in Clause 2.03 of Notification No.4/89, which would read as under;
'2.03. Quantity to be drawn for sampling.___ The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogenous and representative before the same (in duplicate) is drawn.'In our considered opinion, the Expert in FSL on facts has made a homogenous and representative sample by drawing some quantity from each stick. Mr. Kapadia submitted that the total weight of quantity so drawn is admittedly 118 & odd grams. He therefore proceeded to divide 118 by 90 and tried to submit that the requirement of aforesaid rule has not been complied with. This submission cannot be accepted. We illustrate the reason for that. Suppose, one of the sticks (containing small as well as big sticks) is itself weighing less than 24 grams. How will it be possible to draw a quantity weighing 24 grams from such a stick What is important is that sample has to be drawn from each part of the substance. In the present case, there were 90 sticks of charas. The Expert in FSL has taken care to see that some portion from each of the sticks is drawn for examination. We see no fault in such type of examination on the part of the expert from FSL.
Mr. Kapadia, then, referred to Page No.74 of the Paper Book. There is a detailed discussion about this document bearing Exhibit 25. This is the notes prepared by Mr. Bipinbhai Davda, the expert from FSL, Ahmedabad, who was examined as PW 7, Exhibit 23. Mr. Kapadia referred to the date `26-4-94' being the date of commencement of analysis by the said expert. He also referred to the date `9-5-94' which is written after scoring date `27-4-94' probably indicating that the work of analysis must have been completed on that date. It has been submitted from this document that although muddamal article was received on 17-4-1994, the analysis was commenced on 26-4-94. Mr. Kapadia submits that this delay would frustrate the prosecution case and the resultant conviction. In support of his submission, he placed reliance upon a decision of this Court rendered by the learned Single Judge in Criminal Appeal No. 200 of 1987 on 24th February 1994 (Coram: N.N. Mathur, J. as he then was). This is a case under the provisions of Prevention of Food Adulteration Act. However, we assume that the decision requires consideration here. There, the report of analysis was not signed by the Public Analyst on the day when the sample was analyzed but was signed after 9 days. A reference was made to unreported decision of the Bombay High Court in Criminal Appeal No. 818 of 1969 decided on 15-12-70 and a decision in Criminal Appeal No. 1008 of 1967 decided on 25-4-1969. We may not detain ourselves for consideration of the submission based on delay in analysis and examination of the sample and signature of the public analyst, for the question came up for consideration before the Division Bench of this Court in State of Gujarat v. Vishramdas Virumal, reported in 1998 (2) GLH Page 986. Following conclusion in Para 18 of the citation will assume importance;
18. Having discussed the issue in detail, our reply to the question raised is as under :
'A report of the Public Analyst delivered under Section 13(1) of the Prevention of Food Adulteration Act, 1954 declaring an analysis of a sample of food to be 'adulterated' or 'misbranded', cannot be ignored without examining the Public Analyst as a witness either by the Court or the accused raising a doubt about the correctness of the report only on the ground that the report is signed by the Public Analyst later on and not on the date on which sample was analysed.'
12. In the present case, the Public Analyst has been examined at Ex. 23. He has explained how the muddamal article was received intact in the office of the FSL. He has also produced the report as well as the rough notes (Kachcha notes) and worksheets with report Ex.26. The only challenge in the cross-examination was that the delay adversely affected his examination since he was alleged to have received the Botanical Report before he completed the analysis of muddamal articles. He denied the suggestion. We have verified from the documentary evidence, Exhibits 24, 25, 26 & 27 and the report of Botanical Examiner which was dated 6th June 1994 that the forensic analysis of the muddamal article was attended to between 26-4-94 and 9-5-94, quite earlier to the receipt of report of the Botanical Examiner. It would therefore be clear that the evidence of the aforesaid witness is supported by the documentary evidence. This being the suggestion in the cross-examination with regard to delay aspect, we find that no prejudice appears to have been caused to the accused. The corrections in the rough notes (Kachcha notes) have been referred to in the cross-examination and have been dealt with at length by the learned Sessions Judge. We have no reason to deviate from the observations and finding of the learned Sessions Judge in that respect. Mr. Kapadia, however, submitted that the witness commenced the work of analysis on 26.4.94 and then submitted that there is no reference about date of completion of analysis. As we have noted hereinabove, the completion must be on 9-5-94. It does not appear from the record, either from the evidence or from any text book on chemical analysis/forensic analysis, that delay in examination would adversely affect the ingredients of the substance. As a matter of fact, it could be said that ingredients might get deteriorated and not get strengthened. In any view of the matter, the argument in this regard does not merit acceptance.
13. In view of what is stated above, we are not in a position to accept any of the submissions made by Mr. Kapadia against the impugned order of conviction. We, therefore, pass following order:-
I. Conviction :
We hereby confirm the impugned judgment and order of appellant's/accused's conviction under Section 20(b)(2) of the NDPS Act.
We now proceed to consider the question of sentence.
II. Sentence :
The accused has been sentenced to undergo rigorous imprisonment for a period of 12 years in so far as substantive sentence is concerned. In so far as sentence of fine is concerned, there has been no submission in this appeal. We, therefore, need not detain ourselves in so far as sentence of fine is concerned. That is the minimum prescribed under the provisions of Section 20(b)(2) of the NDPS Act. We, therefore, confirm that sentence at this very stage. In so far as the substantive sentence of 12 years is concerned, the learned Sessions Judge has given cogent reasons, inter alia, saying that the stock of charas that was found from the possession of the accused was quite large and that it was meant for the purpose of trading/business. It was submitted before the learned Sessions Judge that the accused was not leading member of the gang and therefore he should be lightly dealt with. Rejecting this submission, the learned Sessions Judge has observed that the accused had played vital role in the matter of dealing with the offending substance of charas. It has been submitted on behalf of the accused that he was not taken to the concerned place in the State of U.P., even though police remand was obtained for that purpose. It has also been submitted that accused No.2 Dineshkumar Krishnachandra Tiwari was one of the main accused who had been discharged in view of the fact that no evidence could be obtained by the investigating agency against him. It is no doubt true that accused No.2, Dineshkumar Krishnachandra Tiwari has been discharged by the learned Sessions Judge as per order below application Ex.7, rendered on 18th March 1995. We are not on that order. What is important to be noticed is, that no evidence could be gathered by the investigating agency against the said accused. There was one more accused, Harnarain Pandey. That accused could not even be chargesheeted for want of any material worth the name. It has been submitted on behalf of the present accused that although the names were disclosed, the investigating agency has not properly and rigorously investigated the matter so as to unfold the drug racket. In our considered opinion, this case would be an eye-opener for the investigating agencies concerned with the investigations of drug and narcotic substances under the NDPS Act. We hereby draw the attention of all the investigating agencies, police authorities as well as other authorities (Customs, as well as Narcotic Control Bureau) to see, that not only the drug offences are properly and rigorously investigated, but the whole racket/chain, taking within its sweep the concerned transaction/offence, is unfolded and booked.
THE PROVISIONS OF THE NDPS ACT, MORE PARTICULARLY, SECTION 50 AND OTHER PROVISIONS DEALT WITH IN THIS