Surinder Singh, J.
1. The challenge in this appeal is to the judgment of conviction dated 26th, June, 2007, passed by the learned Special Judge (Fast Track Kullu), under Section 20 read with Section 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985, in short 'The Act', whereby the appellant has been sentenced to undergo the rigorous imprisonment for a period of 14 years and to pay a fine of rupees two lacs, in default of fine to further undergo the sentence for a period of one year.
A. PROSECUTION CASE
2. In short, the facts giving rise to this appeal can be summed thus. The Narcotic Control Bureau (NCB) Chandigarh, through its Intelligence Officer Sh. P.K. Sharma, (PW10) filed a complaint against the appellant and two others, hereinafter to be referred, 'the accused', under the aforesaid sections, alleging that on 11th February, 2004 he (PW10) alongwith Sh.O.P.Sharma, Superintendent (PW11) NCB Chandigarh office alongwith Baldev Rai DEO and Sepoy Rajesh Kumar reached Kullu on a routine checking and surveillance. Around 12 p.m. they received secret information that some persons were involved in the drug trafficking and they might transport the contraband in a private Maruti car bearing registration number HP-34A-2533 at 'Bandrol' near Neeramati Road Kullu.
3. PW10 Shri P.K. Sharma, passed on this information to PW11 Sh. O.P. Sharma, in writing (Ext.PW10/A). Sh. O.P.Sharma, vide his written orders Ext.PW 10/B, directed him (PW10) to visit the spot immediately. Thus, Sh. P.K. Sharma visited police station Kullu and made a written request Ext.PW3/A to the SHO Dinesh Kumar to seek security. PW3 S.I Dorje Ram and H.C. Mohan Lal were also given notices under Section 67 of the Act to become witnesses, as there was urgency and independent witnesses were not included.
4. The raiding party proceeded to the spot around 1 p.m. in a Quails vehicle and reached at Bandrol at 1.30 p.m. followed by the NCB team including Sh. O.P.Sharma, who travelled in their own government vehicle. The raiding party noticed a Maruti car bearing registration No. HP-34-2533, at some distance parked on the curve at Neeramati road. There were four occupants in the car.
5. PW 10, Sh. P.K. Sharma and PW11 Sh. O.P. Sharma alighted from their vehicle and approached Maruti car on foot, introduced themselves as the officers of the Narcotic Bureau Chandigarh and questioned them. The occupants of the car became nervous and the accused Naveen Sood, who was on the driving wheel drove off his car, but they were chased by the NCB officers followed by the police team in their own respective vehicles. At some distance the Maruti car slowed down, three occupants except its driver got down and ran away in two different directions. One of them ran downwards and two others went uphill. Sh. P.K. Sharma, O.P. Sharma, S.I. Dorje Ram and H.C. Mohan Lal remained on the spot and apprehended the driver of the Maruti car, the appellant herein. Other officials chased the fleeing accused persons. The accused who had run upwards pelted stones on them which damaged the window panes of Maruti car, but none of the three absconding accused could be apprehended and chasing officials returned after about two hours.
6. Sh. P.K. Sharma (PW10) asked about the identity of the appellant-accused. He also enquired about the bags i.e. one lying on the front seat having an inscription 'Bordex Canada' on it and another bigger one with the inscription of '222 whole Mill Atta' on the rear seat of his car. The appellant after disclosing his identity told him that these two bags contained Charas which were kept by all of them in the car, including the absconding accused, whose names were also disclosed by him.
7. On search of the bigger bag, it was found to have contained 21 KG Charas and the smaller bag was having 4 KG Charas, which were wrapped in polythene packs. The contents were tested with a testing kit. The result was positive.
8. The bigger bag was marked 'A lot' and the smaller 'B lot'. Two samples of 25 gms. were drawn from 'A lot' and marked A1 and A2 each similarly two samples of 25 gms each from the 'B lot' and marked B1 and B2. All the four sample parcels were sealed with seal impressions 'NCB 06' each at four places. PW10 and PW11 Sh.O.P. Sharma, PW3 SI Dorje Ram and H.C. Mohan Lal signed each of the four sample parcels. The remaining charas of 'A lot' was made a parcel, similarly the charas of 'B lot' was packed and both were separately sealed with the same seal and accordingly marked as such. The polythene packs in which the charas was found wrapped were also made a separate parcel, which were sealed and marked 'X' and two Jute bags found in the car were also sealed with the same seal and marked 'Y'. Seal after its use was handed over to Sh. O.P. Sharma (PW11).
9. On the search of the car, the Intelligence Officer (PW10) recovered two mobile phones from the rear seat. The case property alongwith the Maruti car alongwith its insurance certificate found in the car and two mobile sets were taken into possession vide memo Ext. PW3/D and Ext. PW3/E respectively. A panchnama Ext. PC, of the entire proceedings was prepared, which was signed by P.K. Sharma, O.P.Sharma, SI Dorje Ram and H.C. Mohan Lal. The signatures of the accused were also obtained.
10. PW10 Sh. P.K. Sharma, gave a notice Ext.PW10/C to the accused Naveen Kumar under Section 67 of the Act, thereafter his statement Ext. PW3/H was alleged to have been recorded about the collection and the proposed disposal of Charas by him and his co-accused.
11. Thereafter the accused was arrested. An arrest memo Ext. PW3/G was also prepared. The information of arrest and seizure was given to Sh. O.P Sharma. The family members of the accused were also informed.
12. The entire proceedings from the time of recovery till its conclusion were conducted by PW10 under the supervision and guidance of PW11 S.O.P. Sharma. The statements of the witnesses were also recorded by Sh. P.K. Sharma aforesaid.
13. The case property was deposited in the police Malkhana in police station Kullu, on 12.2.2004 at 8.15 p.m. in a locked trunk. The information of arrest and seizure under Section 57 of the Act Ex.PW10/E was given to PW11 Sh.O.P. Sharma. On 13.2.2004 the case property was produced before the Judicial Magistrate Manali, as also the accused Naveen Sood by the NCB team. The Judicial Magistrate ordered for 3 days custody of the accused and he found the case property duly packed and sealed and passed the order EXT. PW10/D. The case property was returned to PW10 P.K. Sharma after putting his signatures thereon. Again the case property was deposited at 7.30 p.m. in the Malkhana in Police Station Kullu, which was in a locked trunk. The daily diary report is Ex.PW2/D.
14. PW10, Sh. P.K. Sharma, also took into possession the record of the Rohit Industries, and the mobile phones of mohinder Kumar, Ravinder Kumar and Alam chand.
15. On 15.2.2004, the said trunk was withdrawn from the police Malkhana and handed over to Sh. O.P.Sharma (PW11). He sent the sample parcels A1 and B1 through PW1 Hayad Singh for chemical analysis and deposited the remaining parcels in NCB Godown under his control at Chandigarh on 16.2.2004. On the same day, the remaining case property was deposited in NCB godown Chandigarh and its entry Ex.PW11/C and receipt is Ex.PW11/B.
16. As per the report Ext. PW11/E of the laboratory, the sample parcel tested positive. The complaint was filed in the Court of learned Special Judge. The co-accused Mohinder Singh and Ravinder Kumar were declared proclaimed offenders as they had absconded and could not be apprehended. The proceedings against the absconded accused were held as per the provisions of Section 299 of the Code of Criminal Procedure.
17. The learned Special Judge, on going through the complaint and the documents appended thereto, charge-sheeted the appellant-accused. He abjured the guilt and claimed trial. To prove its case the complainant examined its witnesses and the accused was also examined under Section 313 Cr.P.C.
B. DEFENCE OF THE ACCUSED.
18. The accused Naveen Sood took the stand that nothing was recovered from him. In his examination under Section 313 of the Code of Criminal Procedure, he stated that he was present at Neeramati road supervising the construction work of his brother-inlaw DW1 Rakesh Sen who had gone to Utter-Kashi because of the delivery of his wife. The labourers and the Junior engineer were also present on the spot. He further stated that Mohinder Singh (absconding accused) had met him on the construction site. When he was talking to him, Mohinder Singh saw a vehicle and shouted and then he ran away. Police personals pelted stones which caused massive damage to the window-panes of his Maruti car. Police chased Mohinder and his companions but they went out of their sight, but however, police caught hold of him on the pretext that he facilitated the escape of the absconded accused. No proceedings were conducted on the spot. He was brought to police station Kullu and was implicated in a false case and also that his statement Ex.PW3/H was the result of threat and coercion and sans of its voluntary character.
19. The accused was called upon to enter into his defence. He examined DW1 Rakesh Sen, DW2 Anil Sharma SDO IPH, DW3 Bir Singh Thapa labour supervisor and O.P. Thakur JE, to prove that the work of DW1 was being supervised by the appellant, in his absence at the relevant time.
20. The learned Special Judge did not believe the defence version but while relying upon the prosecution evidence convicted and sentenced the accused as aforesaid, which is now under challenge.
C. SUBMISSIONS BEFORE US.
21. Shri M.S. Guleria, learned Counsel for the appellant, vehemently argued that the complainant had enough time to include the independent witnesses but they deliberately avoided it with ulterior motive and further that the statement of the official witnesses are self contradictory and contrary to record, therefore, cannot be believed. It is also argued that the statement Ex.PW3/G recorded under Section 67 of the Act cannot be believed and read in isolation, to pass a conviction against the appellant, more specifically, when it has been disputed and challenged being wrong and illegal in the cross-examination. He further ventilated that the prosecution has also failed to prove the samples in question examined by the Chemical Examiner vide its report Ex.PW11/E to connect the appellant with the alleged contraband.
22. Contra, Shri Ashwani Pathak, learned Counsel for the respondent (NCB) while supporting the conviction and sentence passed by the learned trial Court, submitted that the statement of the accused, recorded under Section 67 of the Act is admissible in evidence and is not violative of Article 20 (3) of the Constitution. He further argued that the independent witnesses could not be included, because of short time and urgency. Further that there is no material contradiction in the statements of official witnesses and the evidence of the prosecution connects the accused with the recovered stuff and there is no material contradiction occurring in the statements of the official witnesses, to upset the judgment of conviction and sentence passed by the learned trial Court, against the appellant.
23. We have given our thoughtful consideration to the rival contentions of the parties and have carefully reappraised and legally scanned the evidence on record.
D. OUR FINDINGS AND REASONS THERE FOR.
24. Clause (3) of Article 20 of the Constitution of India provides that no person accused of any offence shall be compelled to be a witness against himself. In fact a confession is irrelevant under Section 24 of the Indian Evidence Act, if it is caused by any inducement, threat or promise having reference to the charge against the accused, proceedings from a person in authority and sufficient, in the opinion of the Court, to give the accused person ground, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
25. In the present case, the statement Ex.PW3/H alleged to have been made by accused Naveen Sood, regarding possession and proposed disposal of the contraband is under attack, which was assailed in the cross-examination of prosecution witnesses. Further the appellant in his statement under Section 313 of the Code of Criminal Procedure denied having given a notice under Section 67 of the Act. Further in reply to question No. 78, he stated that his statement was obtained by the police at Police Station, Kullu, in custody, under threat and intimidation and he was also subjected to torture in the police station in this connection.
26. The record shows that Notice Ex.PW10/C under Section 67 of the Act was given by PW10 P.K. Sharma, Intelligence Officer on 12.2.2004 at 7 p.m. at Bandrol on Neeramati link road, whereas, copy of the arrest memo Ex.PW3/G shows that after the alleged recovery of alleged contraband, the accused Naveen Sood was arrested and his statement was already recorded under Section 67 of the Act and he was placed under arrest at 18.45 hours i.e. 6.45 p.m. on 12.2.2004. The witnesses to this memo are PW3 S.I. Dorje Ram and HC Mohan Lal. Both these documents are irreconcible. If the statement of the appellant was already recorded before making his arrest at 6.45 p.m. as mentioned in the said memo, then what was the need for serving a notice upon the appellant for his statement at 19.00 hours (7 p.m.) as aforesaid? The only logical conclusion, which we can derive is that, PW10 P.K. Sharma, Intelligence Officer fabricated statement Ex.PW3/H in connivance of the police and his officers to strengthen their case. Further the said statement in the form of confession has been proved to have been recorded when he was under custody and in the immediate presence of Police Sub-Inspector Dorje Ram and HC Mohan Lal. This fact is born out from the fact as both of them have also signed each and every page of the said statement. As already stated above, the accused has assailed this statement in the cross- examination of the said witnesses, being under threat and to avoid evil of a temporal nature. Thus, in view of the explanation given by the appellant that it was under duress and threat, stands proved by preponderance of probabilities existing on record. Also, we find that the statement Ex.PW3/H of the accused was recorded when he was in custody. It being so, it can not be said that he had made a voluntary statement, which satisfies the conditions precedent laid down in Section 67 of the Act. The Supreme Court in the aforesaid circumstances, in Union of India v. Bal Mukund and Ors. 2009(3) Cri C C 806 (S.C.) also did not rely upon such a statement recorded by the Authorized Officer under Section 67 of the Act. Further the Apex Court reiterated the law laid down by it in D.K. Basu v. State of West Bengal : 1997(1) Apex Court Journal 158 (S.C.) : (1997) 1 SCC 416 that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence.
27. Since the Authorized Officer also did not inform in clear and unequivocal terms as to the right of the accused to silence, this has also caused serious prejudice to him. Therefore, statement Ex.PW3/H, recorded under Section 67 of the Act, cannot be made the basis, for the conviction of the accused. This rule was also invoked by a Constitution Bench of Supreme Court in State of Punjab v. Baldev Singh : (1999) 3 SCC 977, wherein it was held:
28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right 'that if he requires' to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose- to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 59 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must think itself for its lapses. Indeed 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 judicial process may come under 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 law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted.
[See also Noor Aga v. State of Punjab and Anr. 2009(1) Apex Court Judgments 192 (S.C.) : 2009 (1) CCC 230 (S.C.) : 2008 (9) Scale 681].
28. Therefore, such a statement Ex.PW3/H is not true and confidence inspiring and is absolutely inadmissible in evidence, being hit by Clause (3) of Article 20 of the Constitution of India and also Sections 24 and 25 of the Indian Evidence Act.
29. Further, the situation in which such purported statement was made can also not be lost sight of. The purported raid was conducted during the broad day light. A good number of police officials' upto the rank of Sub Inspector were present. Search and seizure, as per prosecution case was effected. No information was sought from the accused. Panchnama appears to have been made to regularize the proceedings. Thus, in these circumstances, it is doubtful whether the accused made such a statement at the Neeramati road itself, in view of the glaring contradictions, as referred heretofore.
30. Further, we also find material contradictions in the statements of official witnesses PW3 S.I. Dorje Ram, PW10 P.K. Sharma, Intelligence Officer and PW11 O.P. Sharma, Superintendent (NCB).
31. PW3 S.I./SHO Dorje Ram stated that when they reached the spot at the link road Bandrol at 1.30 a.m., he noticed a Maruti Car, which was parked there. On seeing it, they stopped their vehicle (Qualis) at the instance of PW11 O.P. Sharma. Thereafter, P.K. Sharma and O.P. Sharma, both alighted from their government vehicle and went nearer to the place where car was standing and talked to the persons sitting therein. In the meantime, their vehicle (Qualis) was turned and parked on the back of the said Maruti Car. When police arrived, the persons sitting in the Maruti Car started making noise to run away. Maruti car started moving ahead. PW11 O.P. Sharma and PW10 P.K. Sharma boarded the Police vehicle and followed them, whereas, PW10 P.K. Sharma and PW11 O.P. Sharma had another story to tell. According to them, they reached in their own vehicle on the spot at 1.30 p.m. and found a Maruti Car No. HP-34-2533, parked on the curve at Neeramati road, wherein four persons, including the accused were sitting. P.K. Sharma alongwith O.P. Sharma alighted from their government vehicle and introduced themselves to the occupants of the Car. They were questioned by them. When they were being questioned, they got perplexed. The driver of the Maruti Car started the vehicle and fled away from the spot. Then they (PWs 10 & 11) also boarded their vehicle (Govt. vehicle) and chased the Maruti Car, at a distance of about 50 mtrs. It slowed down, three of the occupants fled away in different direction. In the meantime, their vehicle reached near the Maruti Car and overpowered its driver when he tried to flee away. Neither P.K. Sharma nor O.P. Sharma stated about the fact that they had boarded the Qualis vehicle of S.I. Dorje Ram and chased the Car. The very manner of chasing of the Maruti car by the police as well as officers of the NCB has become questionable as to which of the version is correct and this contradiction assumes importance and is material, in view of the fact that statement Ex.PW3/H of the accused was proved to be fabricated one. As PW3 S.I. Dorje Ram also admitted that the accused was arrested at 6.45 p.m. and before arrest, he was interrogated and he made the confessional statement Ex.PW3/H, but the notice Ex.PW10/C referred above sharply contradicts his version, thereby making the case of the prosecution a suspect.
32. Significantly, PW3 S.I. Dorje Ram does not say about the recovery of Charas from the bags, as alleged. He stated that the Charas was in the gunny bags, one lying on the front seat and another on the rear seat.
33. Also, we find the case property including the samples in this case were sealed with the seal of PW11 Sh. O.P. Sharma, which bore the impression NCB-06. After its use, it was handed over, back to PW11 O.P. Sharma on the spot, which fact is stated by PW10 Sh.P.K. Sharma and also corroborated by the Panchnama Ex.PW3/C. It is not clear that after its recovery till its production before the Judicial Magistrate where was the case property. The evidence on record reveals that a trunk having single lock was produced before Inspector/SHO Dinesh Kumar by PW10, as per the entry in daily diary Ex.PW2/B was deposited with MHC in Malkhana on 12.2.2004 at 8.15 p.m., not resealed by the SHO, but according to PW2 MHC Roop Singh, he was only told that the trunk contained case property. The said trunk was withdrawn on 13.2.2004 at 4.30 p.m. from the Malkhana for its production by the Magistrate. When the case property was produced before the Judicial Magistrate, no such trunk was produced. His order dated 13.2.2004 is Ex.PW10/D. It does not contain the particulars of the case property. The question is whether it also contained in sample parcels. The trunk when produced before Inspector/ SHO Dinesh Kumar, he did not affix his seal either on the lock of the trunk or the case property. There is also no reference in the daily diary of police that when it was re-deposited at 7.30 on 13.2.2004 after its production before the Magistrate, it was kept in the trunk or was separate. There is also no reference in the statement of any witness who had put the case property in trunk and locked it and who was having its keys, if viewed in the context that the seal was with PW11 Sh.O.P. Sharma, Officer of the NCB, cast a serious doubt the way case property was dealt with. If the locked trunk contained the case property, why was it not got resealed from the Inspector/SHO to satisfy the requirement of Section 55 of the Act, which is another infirmity in the prosecution case.
34. Section 55 of the Act reads as under:
55. Police to take charge of articles seized and delivered:
An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall 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 to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
35. The prosecution is obliged to clear all the ambiguities to inspire confidence in its case that the enquiry, investigation or proceedings conducted were above board. The non-compliance of this section also creates a doubt in the prosecution case.
36. Further, we find that PW11 Sh. O.P. Sharma, Superintendent was the Incharge of NCB Godown. On 15.2.2004, the case property was delivered to him vide memo Ex.PW10/E. It was he who should have deposited it in NCB Godown, but Ex.PW11/C the entry shows it was deposited by Sh. P.K. Sharma and O.P. Sharma issued receipt Ex.PW11/B. It is not known how and in what manner the case property passed on to Sh. P.K. Sharma. The receipt and report of analysis (Exts.PW11/D and E) do not make any reference that the samples of seals were accompanying the sample parcels and its seals tallied with the parcels sent for examination and there is also no reference about the signatures of the Judicial Magistrate or the seizing officers and witnesses on the sample analyzed. Therefore, prosecution has failed to connect the report with the alleged recovery.
37. For the foregoing reasons, we do not find that the case of the NCB could be proved by them beyond reasonable doubt.
38. In the aforesaid fact situation, when the recovery of the alleged contraband is doubtful, we are unable to press into service the provisions of Sections 23 and 54 of the Act to put a reverse burden on the accused. Accordingly we allow the appeal and set-aside the judgment of conviction and sentence, passed by the learned Special Judge (Fast Track Court) Kullu and acquit the accused (appellant) and his Maruti Car No. HP34A- 2533 if not already released be also released to him.
39. The appellant is in jail, undergoing the sentence. He be set at liberty, if not required in any other case.
40. Registry of this Court to send a release warrants with immediate effect.
41. The matter stands disposed of. Send down the records.