Judgment:
Deepak Gupta, J.
1. This appeal, by the State, is directed against the judgment dated 29th May, 1996, delivered by the learned Additional Sessions Judge, Shimla in Sessions Trial No. 21-N/7 of 1992/90 whereby the accused have been acquitted of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').
2. The prosecution story, in brief, is that on 26.3.1988 Head Constable Kishor Chand (PW-11) was on routine patrol duty at bus stand, Theog. At about 6.30 P.M., he noticed one person carrying a rexine bag at the bus stand. On seeing the police, the said person tried to run away. He was over powered by the police party. The said person was identified as accused Sat Paul. PW-1, Pawan Kumar and PW-2, Puran Chand were associated as the independent witnesses. Thereafter, the rexine bag (Ex.P-1) was searched. Inside this rexine bag, there was a towel (Ex.P-2). In the towel, there were three polythene packets. These polythene packets contained charas. Said charas was weighed and found to be 1 Kg. 450 Gms. The recovery by the police was made vide memo Ex.PW-1/A. Thereafter, PW-11 sent report Ex.PW-9/A to the police station on the basis of which F.I.R. Ex.PW-9/B was registered. PW-11 also prepared the site plan Ex.PW-11/A. Thereafter, accused No. 1 Sat Paul was arrested. After Sat Paul accused was arrested, he in the presence of PW-1 Pawan Kumar and PW-2 Puran Chand made a disclosure statement Ex.PW-1/B under Section 27 of the Indian Evidence Act. According to this statement, he had concealed another packet containing 400 grams of charas below the cot in the house of accused No. 2, Bimla Devi. The accused No. 1 also stated that he could get the charas recovered.
3. Thereafter PW-11 formed a raiding party and associated Gita Ram (PW-3) and Lekh Ram (PW-4) in the raiding party and searched the house of Bimla Devi, accused No. 2. In this search, another rexine bag was found containing charas from below the cot in the room of accused No. 2. The charas weighed 400 grams. According to this witness four separate samples weighing 10 grams each were drawn from all the four packets and sealed with seals 'T' and 'A'.
4. The samples were sent for analysis to the Chemical Examiner, who vide his report Ex.P-X opined that the two samples sent to him contained charas. According to the prosecution case, it was accused No. 3 who had delivered the charas to respondent No. 2, Bimla Devi. On the basis of this material, the accused were challaned and charged with having committed an offence punishable under Section 18 of the Act to which they pleaded not guilty and claimed trial. After trial, the accused have been acquitted. Hence, this appeal by the State.
5. At the outset, we may notice that here we are concerned with two recoveries; first recovery made from accused Sat Paul and the second recovery made from the house of Bimla Devi. We shall deal with each recovery separately.
6. So far as the first recovery is concerned, since the recovery was made from the bag and not from the personal search of the accused, Section 50 of the Act would not be attracted in this recovery.
7. The independent witnesses to the search were examined as PW-1 and PW-2. According to PW-1 Pawan Kumar, he and PW-2 Puran Chand were standing at bus stand, Theog when the police officials came and told them that they were having some doubt about the material being carried by accused, Sat Paul. He then stated that the police told him that Sat Paul accused was carrying charas in the bag. Then they were taken to police station alongwith accused persons. The bag was opened in the police station. Inside the bag, three polythene packets were found and each packet contained charas and the total charas on weighment was found to be 1 Kg. 450 gms. Out of the seized charas, one sample of 10 grams was drawn and thereafter the sample and bulk charas were sealed. In cross-examination, this witness stated that he was called by Kishor Chand, Head Constable, who had informed him that either charas or opium is kept by the accused in his bag.
8. PW-2, Puran Chand also gives a similar version. According to him, when he and PW-1 were standing at bus-stand, Theog, 2/3 police officials came to them and told that accused Sat Paul is carrying charas or opium in his bag. They then went to the police station. Charas weighing 1 Kg. 450 gms. was recovered from two polythene packets kept inside a towel.
9. PW-7, Head Constable Prakash Chand was allegedly a member of the raiding party which conducted the first recovery. According to him, the accused was apprehended at the bus-stand in the presence of PW-1 and PW-2 and the bag of the accused was searched. On search of the bag, three plastic packets wrapped in a towel were recovered. These packers contained charas. Thereafter, this witness had brought the weighing scale. The charas was weighed and found to be 1 Kg. 450 gms. A sample of 10 gms. was drawn from the seized quantity for chemical examination and the sample and the bulk charas was sealed with seal 'A'. According to this witness, the entire proceedings were carried out at the spot and nothing was done in the police station. This witness did not sign any document during the course of investigation.
10. PW-11, A.S.I. Kishor Chand has virtually repeated what has been set out in brief in the prosecution story hereinabove and therefore, it is not necessary to discuss his entire statement. According to him, there were three packets of charas recovered in the first recovery and three samples were drawn from all these packets and all these three samples and three packets were sealed with seal 'A'. The witness is silent as to what he did with the charas packets.
11. There are material contradictions in the statements of the witnesses. According to the official witnesses, the entire seizure operation leading to the first recovery was conducted at the bus stand itself. Both the independent witnesses stated that nothing was done at the bus stand and they were taken to the police station. Accused was also present alongwith bag in the police station. This is a major contradiction between the statements of the official and independent witnesses. Second major contradiction is that according to PW-1 three packets containing charas were recovered in the first search. However, according PW-2 only two packets were recovered. The presence of PW-7 is also doubtful. In case he had been present on the spot, he would have signed at least one document out of the various documents such as the recovery memo or the seizure memo or memo informing the accused about his search. He has not signed any document, and therefore, there is a doubt that he was actually present at the spot. Admittedly, Head Constable Kishor Chand was present at the spot, but he has not been examined by the prosecution.
12. According to PW-11, he drew three separate samples of 10 grams each and he stated that the case property contained of three separate bulk parcels and three sample parcels, i.e. six parcels in all, whereas the other witnesses stated only about one bulk packet and one sample. This is also a major contradiction in the prosecution version, which renders the first recovery itself doubtful.
13. So far as the second recovery is concerned, according to the prosecution itself, this recovery was made on the basis of the disclosure statement made by accused No. 1 in the presence of PW-1 and PW-2. PW-1 and PW-2 though have supported the prosecution so far as the first recovery is concerned, but denied that any such disclosure statement was made in their presence.
14. Even as per the case of the prosecution, the second recovery was made as a result of prior information received by the police officials in the form of disclosure statement. The recovery was made from the house of accused No. 2, Bimla Devi and admittedly, the said recovery was made at 8.30 P.M., i.e. after sunset and before sunrise. In such a case, Section 42 of the Act would definitely be attracted.
15. Section 42 of the Act at the relevant time read as under:
42. Power of entry, search, seizure and arrest without warrant or authorisation.
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) Enter into and search any such building, conveyance or place;
(b) In case of resistance, break open any door and remove any obstacle to such entry;
(c) Seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) Detail and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) 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 immediately send a copy thereof to his immediate official superior.
16. The Apex Court in State of Punjab v. Balbir Singh : (1994) 3 SCC 299; Abdul Rashid Ibrahim Mansuri v. State of Gujarat : (2000) 2 SCC 513; Karnail Singh v. State of Rajasthan : (2000) 7 SCC 632 and in many other cases has held that the provisions of Section 42 are mandatory in nature and non-compliance thereof renders the search illegal.
17. Power to make search and seizure as also to arrest an accused is founded upon and subject to satisfaction of the officer as the term 'reason to believe' has been used in Section 42. Such belief may be founded upon secret information that may be orally conveyed by the informant. This must then be recorded in writing. Draconian provision which may lead to a harsh sentence having regard to the doctrine of 'due process' as adumbrated under Article 21 of the Constitution of India require striking of balance between the need of law and enforcement thereof, on the one hand, and protection of citizen from oppression and injustice on the other.
18. The Apex Court in Balbir Singh's case (supra) referring to Miranda v. Arizona (1966) 384 US 436 while interpreting the provisions of the Act held that not only the provisions of Section 165 of the Code of Criminal Procedure would be attracted in the matter of search and seizure but the same must comply with the right of the accused to be informed about the requirement to comply with the statutory provisions.
19. The Apex Court times without number has laid great emphasis on recording of reasons before search is conducted on the premise that the same would reflect the earliest version which would be available to a court of law and the accused while defending his prosecution. The provisions contained in Chapter-V of the Act are a group of sections providing for certain checks on exercise of the powers of the concerned authority which otherwise would have been arbitrarily or indiscriminately exercised. The statute mandates that the prosecution must prove compliance of the said provisions. If no evidence is led by the prosecution, the Court will be entitled to draw the presumption that the procedure had not been complied with.
20. Section 42 of the Act clearly lays down that the authorized officer is entitled to enter into or search any building if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance liable for seizure or forfeiture under the Act is kept or concealed in such building. The Investigating Officer has not stated that he recorded the information received by him in writing. This is a mandatory provision of law and non-compliance of the same makes the search illegal.
21. Proviso to Section 42 provides that if the Officer receiving such information has reason to believe that a search warrant cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of an offender, he may enter and search the building after recording the grounds of his belief. In the present case the Investigating Officer did not make any attempt to obtain search warrants and he also did not record the grounds for making the search without obtaining the search warrant. This also amounts to non-compliance of the provisions of Section 42.
22. Section 42(2) of the Act provides that the Officer taking down any information in writing under Sub-section (1) or recording the grounds for his belief under the proviso thereto shall within 72 hours send a copy thereof to his immediate official superior. This provision has also not been complied with at all. Therefore, there is total non-compliance with the provisions of Section 42 of the Act.
23. There is no evidence whatsoever to show that any of the provisions of Section 42 of the Act were complied with. Whenever any secret information is received by any person, the same should be taken down in writing. This is provided under Section 42(1) itself. This was admittedly not done. Section 42(2) at the relevant time started with the words 'where an officer takes down any information in writing under Sub-section (1), he shall immediately send a copy thereof to his immediate official superior'. This provision has been held to be mandatory in a number of decisions cited here-in-above. This has also not been done in the present case. Thus the search and seizure operation is totally illegal.
24. In addition thereto, in the present case, the search was admittedly conducted after sunset and before sunrise. In such an eventuality, the officer must record the reasons and ground of belief under Section 42(1)(d) of the Act, which has also not been done in the present case. Therefore, the search is hit by Section 42 and is totally unreliable.
25. We may also note that PW-8, Shri R.M. Sharma, the then S.D.P.O. stated that he just happened to pass through bus stand, Theog when Head Constable, Kishor Chand met him and informed that Sat Paul accused had been arrested and he had made a disclosure statement under Section 27 of the Indian Evidence Act. According to this witness, house of Bimla Devi accused was searched in his presence. If a senior officer was present, then compliance of Section 42 of the Act should have been made. In fact, it appears that Shri R.M. Sharma was not present on the spot. If he had been present on the spot, then disclosure statement, Ex.PW-1/B would have definitely been signed by him. Surprisingly, both PW-1 and PW-2 have not only denied the making of such a disclosure statement in their presence, but have also not stated about the presence of PW-8 and PW-9.
26. The independent witnesses to the search were PW-3 and PW-4. PW-3 Gita Ram stated that on 26.3.1988 at about 8 P.M., the police visited his house and asked him to accompany them to the house of Bimla Devi. Then they went to the house of Bimla Devi and charas was recovered from under the cot. He then went to the police station alongwith the police. Bimla Devi was already in the police station prior to the recovery. This fact clearly shows that the police had already visited the house of Bimla Devi and taken her in custody and thereafter the search was conducted. This witness is also silent with regard to presence of PW-8.
27. Similarly, PW-4 Lekh Ram, the other independent witness to the search in the house of Bimla Devi did not support the prosecution at all and turned hostile.
28. In the present case, the link evidence is totally missing. Neither PW-8 nor PW-11 have deposed where the charas was kept after it was seized. According to the version of PW-11 there should have been four bulk parcels and four samples parcels, but the Chemical Examiner had mentioned only about two samples. Where the remaining samples remained, has not been explained at all. Neither the Malkhana Register nor the Road Certificate have been proved on record. Even the M.H.C./Incharge of the Malkhana has not been examined. There is no evidence on record to show as to where the charas remained after its seizure on 26.3.1988 till it was sent to the Chemical Analyst through PW-10 Govind Ram on 21.9.1988, i.e. more than six months after the original search. When there is such a long delay, the prosecution must prove beyond a reasonable doubt that the seized contraband was kept sealed in such a manner that it could not be tampered with. There is no evidence to show in what manner this charas was kept from 26.3.1988 till 21.9.1988.
29. For the foregoing reasons, we find no merit in the appeal which is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged.