Hon. Vinod Prasad, J Appellant Shyam Babu Vishwakarma alias Ram Babu alias Shyam Babu is aggrieved by his conviction u/s 22 ( C ) N.D.P.S. Act and 489 (C) IPC and imposed sentences of ten years RI with Rs. 1 lakh fine, the default sentence being two years further RI, on the first count and two years RI with fine of Rs. 1000/-, the default sentence being one month further RI on the second count, recorded by Additional Sessions Judge, Court No. 1 Banda, vide impugned judgement and order dated 25.5.2010, passed in Special Case No. 4 of 2008, State Vs. Shyam Babu Vishwakarma and S.T. No. 64 of 2008 (State Vs. Ram Babu alias Shyam Babu) and consequently has challenged the said judgement in the instant appeal u/s 374 (2) Cr.P.C. Further directions by the trial judge were that both the sentences shall run concurrently and set off shall apply to calculate total period of incarceration.
Stated briefly, prosecution allegations against the appellant, as extracted from the recovery memo Ex. Ka 2 and chik FIR Ex. Ka 8 and testimonies of fact witnesses, were that on 24.12.2007, informant P.W. 1 Manoj Kumar Kaushik, SHO P.S. Kotwali, district Banda started for routine checking duty at 12.35 p.m., vide Rapat No. 35, in an official jeep driven by Vansh Narain accompanied by Constables Ram Pratap Singh and Budha Singh Bundela and came to tri-section crossing in front of Awasthi Park at 6 p.m. where he met Sub Inspector K.N. Singh P.W.-2 and all of them entered into conversations, when SOG Constables Om Narayan Shukla, Constable Iqbal Uddin, Constable Vinay Pratap and Constable Kalimuddin also arrived and joined them. In the midst of their talks, an informer informed them that a person on a red Hero Honda motor cycle coming from District Board side is carrying smack and fake currency note. Believing information to be correct, P.W. 1 vainly endeavoured to join independent witnesses and consequently, all of them conducted inter se search of each other but could not find any objectionable substance. They thereafter, lay in waiting near the road at a distance of 100-150 meters from District Board for the person regarding whom, they were tipped off. At 6.45 p.m. they spotted a person coming from District Board side on a motor cycle. Informer pointed out at him and retreated from the spot. Approaching nearby motor cycle rider, was stopped and questioned, on which he disclosed his name as Shyam Babu Vishwakarma, the appellant. P.W. 1 thereafter informed him that they had concrete information about his possessing smack and fake currency note. Initially appellant denied the said allegations but thereafter confessed that he had small quantity of smack and a fifty rupees denomination fake currency note. Informant P.W. 1 thereafter made accused appellant aware of his rights u/s 50 NDPS Act of being searched before a Gazetted Officer or a Magistrate of his choice on which appellant in writing gave, Ext. Ka-2, of being searched by searching police party itself. Subsequent to written consent, that P.W. 1 and other police personnel got their personal search conducted by the appellant to rule out any false implication and subsequent thereto P.W.-1 conducted physical/bodily search of the appellant and found from right pocket of his pujama type full pant smack wrapped in a tattered piece of a newspaper, which on weighing came to be six grams, material Ext. 1. From the left side pocket of the pant a fake 50 rupees currency note, which resembled original currency, was recovered. On further inquiry appellant informed that a friend of his had given him the narcotic and the fake currency note but he did not disclose his name. Regarding motor cycle it was informed that the same belonged to him but failed to produce any paper in it's respect. Since appellant was involved in contravention of provisions of NDPS Act, I.P.C. and M.V. Act with penal consequences that, he was arrested under section 22 NDPS Act, 489 IPC and M.V. Act. Recovered narcotic and the fake currency note were separately seized and sealed, regarding which recovery memo Ext. Ka-1 was got scribed through S.I. K.N. Singh, P.W. 2 at the dictation of informant Manoj Kumar Kaushik P.W. 1. Seizure memo thereafter was read over to the appellant and other police personnel who all thereafter signed on it. Arrested accused along with recovered articles was brought to the Police Station Kotwali Nagar, Banda, where FIR of Crime Nos. 1485 of 2007, 1486 of 2007 and 1487 of 2007 was got registered u/s 22 NDPS Act, 489 ( C) IPC, and 181/192/196/207 M.V. Act respectively and thereafter accused was put in the police station lock up. Investigation of the crime was handed over to SSI R.N. Tripathi.
Following day 25.12.2007 in the morning at 9.45 A.M. P.W. 1 and I.O. thoroughly interrogated the appellant, who disclosed that one Ramjas Shivhare resident of Naraini locality presently residing some where in Kanpur, is engaged in narcotic trade and he had supplied him huge quantity of narcotic 3-4 days prior. From the supplied narcotic small quantity was recovered from the appellant previous day when he was carrying it for sale and was apprehended. Appellant further disclosed that huge quantity of smack is kept in his house which he can get recovered. On such a disclosure statement, P.W. 1 informed C.O. Komal Kumar Bhalla P.W. 4, who instructed P.W. 1 to bring appellant accused to Attarra octroi post, near appellant's house, where he will join them. P.W.1 accompanied by I.O., SSI R.N.Tripathi, PW2, PW3 Chaturbhuj Singh, persons of SOG along with the accused came to Attarra octroi post where they were joined by C.O.K.K. Bhalla P.W. 4, who made certain inquiries from the appellant. Searching and raiding police party then efforted to secure presence of independent witness, but failed in their attempt. At 10.15 a.m., appellant took the police party to an inside room of his house and after opening a safe kept there he brought out a black coloured bag, on unzipping of it, two polythene packets containing smacks were recovered. In one polythene smack was in granule form whereas in the other packet it was in grinded or mined form. H.C.P. Chaturbuj Singh Patel and Constable Bundela brought electronic measurement from the shop of Rajendra Jadia of the bullian market from the motor cycle of P.W. 2 and weighing from it, granule smack were found to be 3 kgs whereas grinded or mined was 1 kg. 15 grams. Thus, in all total 4 kg 15 grams of smacks were alleged to have been recovered from the bag kept in the safe inside house of the appellant. Raiding Party drew two samples of 50 grams smack from both the packets, seized and sealed it. The residue smacks were re-deposited in the same bag, which then was sealed with outer cloth covering. Recovery memo Ext. Ka-3 regarding seizure of the smack was scribed by S.I. K.N. Singh P.W.2 and was singed by P.W.4 and a copy of it was handed over to the appellant, who also signed on it. Recovered granule smack inside polythene is material Ext.-2, whereas mined/grinded smack is material Ext. 3. Another small sealed bundle contained two small quantity of smack were exhibited as material Ext.-4 and 5, which seems to be the drawn samples, were produced during trial.
P.W.6 Moharir Constable 364 Narayan Babu Tiwari had registered F.I.R. of the aforementioned crime numbers and had prepared Chik F.I.R. Ext. ka-8 on 24.12.2007 at 9.10 p.m. G.D. entry in that respect was drawn by HCP Chaturbuj Singh, vide Ext. ka-9.
SSI R.N. Tripathi, 1st I.O. commenced investigation who copied chik FIR, GD entry, recovery memo, letter of consent and 161 statement of PW6, Narain Babu Tiwari. He conducted investigation till Parch no. 4. Thereafter, Superintendent of Police, Banda, transferred the investigation to Raj Narain Singh, Incharge SIS, Banda,PW5, who commenced the investigation on 15.1.2008 from 5th parcha. On 23.1.2008, PW5 recorded 161 statements of informant PW1 and the first I.O. Ram Naresh Tripathi and at their pointing out conducted spot inspections of both the recovery spots and prepared it's site plans Ext. Ka-4 and Ka-5. Thereafter, on 4.2.2008, PW5 penned down 161 statements of CO (City) K.K.Bhalla, PW 4, Constables Om Narain Shukla, Eqballuddin, Vinay Pratap, and subsequently copied result of analysis, and thereafter recorded 161 statements of other witnesses and concluding investigation charge sheeted accused appellant vide charge sheet No. 81/ 80, u/s 22/23 NDPS Act, on 12.2.2008, vide Ext. Ka 6, on the basis of which Special Judge, NDPS Act took cognizance of that offence on 20.2.2008 and registered case no. 4 of 2008 against the appellant.
Charge sheet u/s 489( c) IPC against the appellant was submitted on 21.2.2008, vide Ext. Ka 7, by PW5, on the basis of which CJM, Banda, took cognizance of the offence on 23.2.2008 and registered case against the appellant but later on finding that offence also triable by Sessions Court, CJM committed said case also to Session's Court for trial, on 10.3.2008, where it was registered as S.T.No. 64 of 2008, State versus Syam Babu @ Ram Babu.
Prosecution in it's attempt to prove accused guilt examined in all seven witnesses out of whom P.W.1 S.H.O. informant Manoj Kumar Kaushik, P.W.2 S.I. K.N. Singh, P.W.3 S.I. Chaturbuj Singh, P.W.4 C.O. K.K. Bhalla were fact witnesses. P.W.5 S.H.O. Raj Narayan Singh 2nd investigating Officer, P.W.6 Constable Narayan Babu Tiwari and P.W.7 3rd Investigating Officer, Inspector Ram Naresh Yadav, of C.B.C.I.D. were formal witnesses. It is pertinent to mention here that during trial, at the request of the appellant, entire residue quantity of narcotic was sent for chemical analysis by the court, to determine percentage of narcotic in the entire seized contraband, which was received in the laboratory on 4.12.2009, and analysis report regarding the percentage of narcotic dated 3.4.2010 indicate that in 2.940 Kgm 5.6% and in 0.940 Kgm9.8% heroin were found. This report is also not exhibited or proved.
In his statement under Section 313 Cr.P.C., appellant pleaded false implication and preparation of false documents. His defence case is that on 24.12.2007, he along with his wife D.W.-1 Smt. Kamla Devi and two daughters Mona and Sanjita were going to participate in sacrificial pyre offering (yagna) in village Bharua Sumerpur on his motor cycle and when he stopped at Chaurasia petrol pump to get the petrol, SOG constable Om Narain and others apprehended him and took him to S.P. Banda, from where he was handed over to the police, who demanded Rs. 25,000/- to release him and on his inability to grease their palm, that police misbehaved with his daughter and falsely implicated him in the instant case of recovery of six grams of smack. When appellant's wife D.W.-1 resisted the arrest and false implication then false recovery of another 4.15 kgs of smack was planted and appellant was roped in that crime as well. Appellant examined six defence witnesses, which included his wife D.W.1 Smt. Kamla Devi, D.W.2 Shiv Bali @ Lalu Maharaj, D.W.3 Ram Saran Verma, D.W.4 Bhagwat Prasad and D.W.-5 S.D.M. Sadar Nandan Chakarwarti. As a documentary evidence, appellant filed and relied upon inquiry report of D.W.-5, S.D.M. Sadar, as Ext. Kha-1.
First Additional Sessions Judge, Banda, on the evidences tendered before it by the prosecution, both oral and documentary, came to the conclusion, vide impugned judgement and order dated 25.5.2010, that prosecution has successfully anointed appellant's guilt for committing offences under sections 22(c) N.D.P.S. Act and 489 (c) IPC and therefore, convicted him on both the charges and imposed sentences of ten years R.I. with Rs. one lac fine for illegal possession of narcotic smack, the default sentence being two years further R.I. and for possessing one fake currency note, two years R.I. with Rs. one thousand fine, the default sentence being one month further R.I. and ordered both the sentences to run concurrently and also ordered set off of the imprisoned period while calculating total period of appellant's jail term. Challenged in this appeal is to the aforesaid conviction and sentence by the sole appellant.
On the above described background facts I have heard Sri J.S. Sengar, advocate for the appellant and Sri Sangam Lal Kesarwani, learned A.G.A. for respondent State and have perused trial court and appellate court records.
Criticizing and castigating the impugned judgement of conviction and sentence, it was vehemently harangued by appellant's counsel that the entire prosecution case is cooked up, concocted and manufactured. False implication of the appellant was brought to the knowledge of the administration by D.W.1 Kamla Devi and on that basis an executive/ administrative inquiry was ordered, which was conducted by D.W.5 S.D.M. (Sadar) Nandan Chakarwarti, who concluded that appellant has been falsely implicated vide his report Ext. Kha-1. It is, therefore, contended that there was a favourable report in support of appellant's defence, therefore, his conviction by the impugned judgement and order is unsustainable. Trial court found no reason to discard Ext. Kha1,and therefore, adopted a very unrealistic approach for discarding the said report by holding that the S.D.M. (Sadar) had not recorded statements of police personnel consisting of raiding party. Appellant's counsel submitted that trial court completely overlooked, eschewed and did not advert to the statement of D.W.5, which remains unchallenged, wherein D.W.-5 had deposed that he made all efforts to ensure presence of police personnel consisting of raiding party to give evidence before him and produce documents but inspite of publication, none of them appeared to give evidence nor they produced any documentary evidence. When S.D.M. (Sadar) D.W.5 had tried to record statements of raiding police party and when the officers and the constables constituting it intentionally and deliberately did not appear before the inquiry Magistrate, castigation of Inquiry Magistrate's report and conduct is wholly unjustified as he cannot be faulted with submitted learned counsel. It was also contended that if the arrest and the seizure from the appellant was genuine, P.W.1 and other police personnel including those of S.O.G. could have appeared before the inquiry conducted by S.D.M. to substantiate their charge, which they intentionally eschewed because they were aware of the fact that their entire activity was a hokum and concocted. It was next submitted that the prosecution evidences are full of improbabilities, embellishments, unnaturalities and therefore, must be discarded, as it does not inspire any confidence. No conclusive opinion on the basis of such evidences can be drawn anointing guilt on the appellant retorted appellant's counsel. It was next contended that written consent, in compliance of section 50 of the N.D.P.S. Act was taken from the appellant by pressurizing, coercing and threatening him and therefore, cannot be taken to be a genuine piece of prosecution evidence, and the same was obtained only to lend credence to the illegal activity conducted by the arresting and searching party headed by P.W.-1, who had an axe to grind against the appellant. Elaborating further, another argument was raised that none of the prosecution witnesses deposed regarding investigatory steps conducted by first I.O. S.S.I. R.N. Tripathi, who himself did not appear in the witness box to support the prosecution version. He deliberately and intentionally deferred and eschewed recording of 161 statements of the informant at the earliest point of time, which was inked after enormous unexplained delay of twenty days, which time was utilized by the prosecution to cook up a case against the appellant. It is further submitted that depositions of prosecution witnesses during trial regarding compliance of section 50are false statements. Pointing out to various testimonies of P.W.-1, P.W.-2,PW3 and P.W.-4, it is submitted that everything was done at the behest of police personnel. Investigation into the crime is shoddy and does not inspire confidence and has left much to be desired. Only police witnesses came forward to lend authenticity to prosecution version and no independent witness came forward to support their story which was a hokum. No attempt was made either by 1st I.O. or 2nd I.O. to trace out real kingpin and therefore prosecution has not been able to establish involvement of appellant in the crime. Since there was complaint against police personnel, therefore entire exercise by the police was to nail in the appellant in a heinous crime. None examination of 1st I.O. S.S.I. R.N. Tripathi, had prejudiced accused case as he was denied opportunity to elicit truth from him. It is next submitted that appellant had remained in jail for three years and nine months and he has probabalized his defence and, therefore, deserves benefit of the report submitted by an independent responsible officer D.W.-5, who had no axe to grind either against the appellant or against the prosecution. It is also contended that questioning and recording of statement of the accused under section 313 Cr.P.C. is faulty and unsatisfactory and caused prejudiced to the appellant and hence appellant's conviction cannot be sustained which too is defective. Learned counsel further submitted that the approach adopted by the trial Judge in mixing up percentage of contraband found in two different samples with two different contents and characteristics, is wholly impermissible and, therefore, entire exercise by the trial court to come to a conclusion that more than commercial quantity of smack was recovered from the possession of the appellant or at his pointing out, is unsustainable and cannot be countenanced. It was next contended that the report of Central Forensic Science Laboratory unerringly indicated that the narcotic recovered from the possession of the appellant, looking from the percentage point of view, will fall only in intermediate category and not in commercial category. Next it was argued that there are court's observations that the samples produced in court during trial did not tally in colour with the narcotics alleged to have been seized and recovered from the appellant from his house and, therefore, the two narcotic-samples and original recoveries were entirely different and what was got analyzed from the Central Forensic Science Laboratory was not the narcotic alleged to have been recovered from the possession of the appellant. Learned counsel further castigated the impugned judgment by contending that Ramjas Shivhare, although was stated to be the kingpin of narcotic trade, was never proceeded with or prosecuted nor any attempt was made by the prosecution side to investigate his activities. This clearly indicate cooking of a case against the appellant. It was further argued that two scales of analysis and appreciations of evidences from two different standards cannot be applied by the Court to scan and appreciate evidences of prosecution and defence witnesses, which has been done in the present case by the trial Judge and, therefore, entire analysis by it suffers from bias and prejudices. Appellant's counsel next contended that the alleged one fake currency note of Rs. 50 denomination will not fasten guilt under section 489(c) I.P.C. on the appellant merely on the statement given to the police party as confessional statement which is hit by section 25 of the Evidence Act and, therefore, not admissible in evidence. In this respect, it was submitted that the statement was obtained from the appellant after he was stopped and apprehended and not prior to it. At the time when the statement was made, there was allegation against the appellant of committing of offence and, therefore, technically he was an accused at that point of time. It was further submitted that the provisions of N.D.P.S. Act and compliance of Sections 42, 50 and 57 were not done and no independent witness was joined with the recovery consciously and the depositions of fact witnesses in that respect is totally false. It was next submitted that if P.W.-1 and other police personnel can rope in appellant in a false charge, they certainly can penned down facts, which never occurred during alleged incident, which is the outcome of their hypothetical brain child. Concluding the argument, it was pleaded that the prosecution has not been successful in bringing home the charge against the appellant, who deserves an acquittal order.
Learned AGA, on the contrary, submitted that there was no animus for the prosecution witnesses to cook up a false story against the appellant. Quantity of smack recovered from the possession of the appellant and at his pointing out, could not have been planted and, therefore, prosecution version cannot be doubted. It was next contended that compliance of section 50 of N.D.P.S. Act was done in the present case and appellant voluntarily gave written note that he does not want to be searched by a Gazetted Officer or a Magistrate and, therefore, no exception of his conduct can be taken. He further submitted that it is established beyond any shadow of doubt that the recovered contraband was smack and, therefore, appellant has been rightly convicted. It is also submitted that commercial quantity or intermediate quantity is not very relevant in present appeal as the punishment awarded to the appellant is commensurate with possession of intermediate quantity of narcotics. Learned AGA pointed out that the application of the appellant for getting the samples tested for deciphering the percentage of narcotic contained in the entire sample was rejected thrice and, therefore, the contention by the appellant regarding commercial quantity is wholly untenable. Learned AGA, therefore, submitted that the appeal of the appellant lacks merit and must be dismissed. Regarding report of SDM, and other defence witnesses the same argument was harangued, which is contained in the impugned judgment as the opinion of the trial Judge. It is submitted that SDM did not make genuine effort to record the statements of P.W.-1 and other police personnel and, therefore, it's report vide Ext. Kha-1 cannot be credited with any authenticity. Learned AGA however conceded to the fact that report of the Central Forensic Science Laboratory was not put to the accused nor was exhibited and appellant was not asked to accept, deny or criticize the veracity of findings recorded thereunder. He also conceded that other relevant incriminating evidences were also not asked from the appellant u/s 313 Cr.P.C., which should have been done but that should not make any difference as no prejudice has been caused to the appellant on that score. Lastly it was submitted that appeal lacks merit and be dismissed.
I have considered the arguments raised by both the sides and have perused entire trial court record. An analysis of the entire facts and circumstances of the case and testimonies of prosecution witnesses P.W.-1 to 7 indicate some very disturbing features of the entire prosecution version some of which have been taken note of by the trial judge himself. To recapitulate those findings the same are inked hereunder along with self analysis and appreciation of the same.
Firstly, it has been opined by the trial judge at page 46/47 of the impugned judgment that it is admitted case of the prosecution that PW 1 informant has not taken down in writing the secret information received by him nor has intimated in writing his higher officers regarding the same and therefore has flouted/ offended section 42(1) and (2) NDPS Act. At the same pages it has also been concluded by the trial judge that section 57 of NDPS Act has also not been observed by informant PW1, arresting officer as he failed to intimate in writing to his higher officer about the arrest and seizure of narcotic contraband from the appellant. Inspite of such observations trial court has recorded a finding that no benefit of none observance of sections 42(1) and (2) and section 57 of NDPS can be conferred on the appellant because of apex court decisions reported in 2009 (3) CCSC 1606, but has not cared to mention the nomenclature of that decision. In a single sentence it has distinguished two apex court decisions cited by the accused appellant reported in 2009(3) JIC 612 and 2009 JIC 571. This approach by the trial judge is illegal, perverse and is inconsistent with the law laid down by the apex court. On what grounds and what where the distinguishable features to accept one decision and distinguish and ignored two others were not mentioned anywhere in the impugned judgment. At page 48 of the impugned judgment trial court referred to the incident dated 25.12.2007 but what it failed to consider is that no compliance of section 42 (1) and (2) NDPS Act was made on 24.12.2007, the first day of recovery. Trial court in fact misled and confused itself in mixing up recoveries on two different dates. On the first day 24.12.2007 taking down of secret information received from the informer, u/s 42(1) and then intimating it to higher officer u/s 42(2) NDPS Act, were an un-eschewable legal requirements, prior and subsequent to arrest and seizure, which was not done at all nor any evidence in that respect was brought forth by the witnesses. PW1 and his companion police officers have admitted this legal flaw. In State of Punjab versus Baldev Singh: AIR 1999 SUPREME COURT 2378 Constitution bench of apex court has observed as under:-
"9. Sub-section (1) of S. 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that 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 he may do so without recording his reasons of belief.
10. The proviso to sub-section (1) lays down that if the empowered 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. Vide sub-section (2) of S. 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of S. 43 and S. 42 is that whereas S. 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, S. 43 does not contain any such provision and as such while acting under S. 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drugs or Psychotropic Substances in a public place where such possession appears to him to be unlawful."
Re affirming the above law, apex court in State of West Bengal and others v. Babu Chakraborty: AIR 2004 SUPREME COURT 4324 went a step further and was pleased to observe as under:-
" 22. Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. This Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to a Court of law and the accused while defending his prosecution. This Court also held that failure to comply with S. 42(1), proviso to S. 42(1) and S. 42(2) would render the entire prosecution case suspect and cause prejudice to the accused.
23.In the cases of Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513; Koluttumottil Razak v. State of Kerala (2000) 4 SCC 465; Beckodan Abdul Rahman v. State of Kerala (2002) 4 SCC 229 and in the case of Chhunna alias Mehtab v. State of M.P., (2002) 9 SCC 363, this Court has held that the non-compliance of the provisions of the proviso to S. 42 of the Act which is mandatory, the action was held illegal and the conviction of the accused was set aside. This Court also held that the onus to prove compliance lies on the prosecution and in the absence of any prosecution evidence about the compliance with the mandatory procedure, the presumption would be that the procedure was not complied with.
24.In the case of Saiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujarat, (1995) 3 SCC 610, this Court held that the prosecution is obliged to give evidence of the search and all that transpired in its connection. It is very relevant that the prosecution witnesses speak about the compliance about the mandatory procedure and if under the evidence to this effect is not given, the Court must assume that the person to be searched was not informed of the protection. The Court must find that the possession of illicit articles under the Act was not established. It has been held that when the officer has not deposed that he had followed the procedure mandated the Court is duty-bound to conclude that the accused had not had the benefit of the protection that the Act affords; that therefore, his possession of articles under Act is not established and that the pre-condition for his having satisfactorily accounted for such possession had not been met; and to acquit the accused."
(Under lines emphasis supplied) Besides an unsatisfactory analytical approach adopted by the trial court, if evidences of PW1 and PW4, on which entire reliance has been placed by the trial judge, is peeped into, it will be evident that none of those witnesses are reliable and truthful. According to the informant PW1 he reached Awasthi Park crossing at 6 p.m. and there after, some twenty five minutes later, informer disclosed secret information. PW1 had ample time to search for independent witnesses and then police party conducted inter se search. It was after all this that police party waylaid to apprehend the accused and arrested him at 6.45 p.m. Why then PW1 did not register/ noted down the secret information? No explanation was offered by PW1 for his such a lapse. It is not his deposition that he made efforts to note down that information but failed. In fact he completely eschewed to observe said legal requirement. At page10 of his deposition he has admitted that he did not note information received from the informer. Later on also he did not pen it down. It is not his evidence that it was a case of emergency and therefore he had no time for recording the said information. It is his evidence at page 10 that "After I and Kedar Nath Singh met twenty five minutes thereafter informer informed that a person carrying smack is coming on red colour motor cycle. This information I had not taken down in writing separately." He had a RT set in his jeep but from it also he did not inform his superior officers. Albeit he offers an explanation that from his official mobile phone he had intimated his superior officers but this fact is not mentioned either in the recovery memo nor there is any document to that effect and it was stated before the court for the first time without informing it to the investigating officers. Mere ipse dixit by PW1 regarding adherence to mandatory legal compliance, without any corroborating evidence is an embellishment deserves to be ignored and discarded. It is worth noting that at page 13 of his testimony PW1 admitted that "no written intimation regarding the incident was dispatched to higher police officers. On the second day also no written intimation was sent to higher police officers". Trial judge has completely ignored this important piece of evidence and did not appreciate prosecution evidences in the light of said testimonies. In fact he only referred to apex court decisions without considering the facts and circumstances involved in the case. On this aspect reference to another Supreme Court decision in Karnail Singh v. State of Haryana: 2009(10) SCALE 255 is apt. Apex court has held thereunder as follows:-
"In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :
(a) The officer on receiving the information (of the nature referred to in sub-section (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediately official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per Clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Section 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the officer superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
Recently, in Dalel Singh versus State of Haryana: 2010 Cr.L.J.425 aforesaid opinion has been reaffirmed by the apex court in para 5 of the said decision. Thus sending of written information by the searching officer to his superior officer is an un-eschewable legal formality which necessarily precede taking down of that information. In the present case no attempt was made to record the information nor any attempt was made to send it in writing to the higher officers. In this respect evidence of PW4 C.O. (Sadar) K.K.Bhalla also does not support prosecution story. Although, PW4 deposed in his cross examination that he was informed on his office phone number 224624 regarding disclosure statement made by the appellant to get narcotics recovered from his house at quarter to nine but that information was neither recorded nor the same was in respect of recovery dated 24.12.2007. PW1 at page 13 of his deposition admitted that no written intimation was dispatched to the higher police officers after registration of crime also. Thus entire conspectus of evidences regarding compliance of section 42 (1) and (2) in respect of recovery dated 24.12.2007 remains un-established and it has to be concluded that there was no compliance of the said mandatory legal requirement. This inaction on the part of PW1 or the first I.O. or other seizing and arresting officers cannot be condoned as has been held by the apex court in Baldev Singh (Supra) . In this respect, present case is distinguishable on facts from the apex court decision in Dalel Singh ( Supra), Where the facts where entirely different. The distinguishable features are as under:-
"6. On this backdrop when we see the prosecution case here, it is apparent that the information was received by P.W.6 Inspector Mahabir Singh when he was not in the police station but was on patrol duty in the town. He immediately, after receipt of the information, informed his superior officer on wireless. There is no doubt that he did not record it in writing but passed on it to his superior ASP Kala Ramachandran by wireless. The fact that the superior officer was informed is deposed to by ASP Kala Ramachandran who appeared as PW5. We have seen her cross-examination which really is totally irrelevant. Similarly, we have gone through the evidence of PW6 Inspector Mahabir Singh. Again, his cross-examination is also redundant cross-examination. Both the witnesses have deposed about the information having been transmitted through wireless and in our opinion would be a substantial compliance of Section 42 of the NDPS Act since the situation was of emergency. Had the police officer not moved right in the earnest, the appellant-accused would have had an opportunity to remove the contraband charas and escaped from the arms of police. Under the circumstances, we are unable to agree with the contentions raised before us by learned counsel for the appellant."
In the present case secret information was not at all taken down in writing nor any intimation about the arrest, search and seizure was made, in writing to any higher police officer by any means.
Now turning towards recovery dated 25.12.2007, neither PW1 nor the first I.O. had sent any intimation to higher police officers. 1st I.O. R.N. Tripathi did not appear in court to give evidence. PW1 admitted that no written information regarding disclosure statement made by the accused was furnished to higher police officers. Disclosure statement was made by the accused while he was at the police station and therefore it was necessary for the I.O. to send written information regarding that to superior police officers, which was never done either prior to the recovery or subsequent thereto. In this respect presence of PW4 alongwith the raiding party is unconvincing and cannot be attached with any credit.PW4 is unable to state important facts and pleaded ignorance regarding many others, which shall be described in the later part of this judgment. No compliance of section 57 NDPS Act was made regarding recovery alleged to have been made on this date as well. Criticism in respect of none observance of section 42(1) and (2) NDPS Act also holds good for none compliance of section 57 NDPS Act. Passages of evidences of PW1 referred to above proved beyond doubt that mandatory requirement of section 57 NDPS Act was never done or attempted to be done. No written intimation about the recovery was sent to higher police officers after it is alleged to have been effected from appellant's house. Prosecution has failed to produce any paper in that respect nor any higher officer has been produced by it supporting such a claim by it. In Gurbax Singh versus State of Haryana :AIR 2001 SC 1002 it has been observed by the apex court as under:-
"9. The learned counsel for the appellant next contended that from the evidence it is apparent that the I.O. has not followed the procedure prescribed under Sections 52, 55 and 57 of the N.D.P.S. Act. May be that the I.O. had no knowledge about the operation of the N.D.P.S. Act on the date of the incident as he recorded the FIR under Section 9 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article........................................Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O. particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was wooden seal. As against this, it is the say of PW-2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy-husk."
In Thandi Ram versus State of Haryana:AIR 2000SC 468 it has been held by the apex court as under:-
"Learned counsel for the appellant contended in view of the decision of this Court in the case of State of Punjab v. Balbir Singh, AIR 1994 SC 1872 : 1994 AIR SCW 1802 : 1994 Cri LJ 3702) as well as 3-Judge Bench decision in the case of Mohinder Kumar v. State, Panaji, Goa, AIR 1995 SC 1157 : (1995 AIR SCW 1208) the conclusion of the High Court is not sustainable in law and the conviction of the appellant cannot be sustained. We find sufficient force in the aforesaid contention of the learned counsel for the appellant. In view of the pronouncement of this Court in the aforesaid cases and in view of the finding as recorded in the judgment of the High Court that provisions of Sections 55 and 57 have not been complied with the conviction is bad in law. The appellant has already undergone sentence for 9 years. We, accordingly, set aside the impugned judgment of the High Court and that of the learned Additional Sessions Judge, Hissar and acquit the appellant of the charges levelled against him. The appeal is, accordingly, allowed. The bail bond stands discharged."
Secondly, trial judge, at page 53, recorded opinion that there are loop holes / short comings in the evidences of PW 1 and PW2 but there is no major contradictions. This conclusion by it is also contrary to the evidences on record and testimonies of witnesses.
Thirdly, trial judge concluded at page 54 of the impugned judgment that from the evidences referred to above it can be safely concluded that PW 2 has not proved the incident/ recovery dated 25.12.2007 beyond any reasonable doubt. This finding runs counter to the second finding mentioned herein above regarding truthfulness of testimonies of PW1 and PW2. If PW2 is not a reliable witness how can he corroborate PW1? A bad witness does not add to bad evidence to make it good evidence. Two bad evidences multiplies bad evidences and further erodes it's credibility.PW2 is the scribe of both the recovery memos and if he is an untruthful witness entire edifice of prosecution allegations regarding recoveries of narcotics from the personal search of the appellant and from his house diminishes in it's credibility. If PW2 was not present at the spot when such huge quantity of narcotics is alleged to have been recovered and it was he who had scribed recovery and seizure memo no authenticity to prosecution allegations regarding that recovery can be attached. It also erodes truthfulness of depositions of informant PW1 as according to him PW2 was a witness of such a recovery. Trial judge's conclusions otherwise, therefore, suffers from basic defects.
Fourthly, at pages 54 last and page 55 beginning, trial judge himself opined that from evidence of PW3 Chaturbhuj Singh also recovery from the house of appellant on 25.12.2007 is not proved, because the recovery was not made in his presence. This finding again discredits evidenciary value of testimonies of PW1 and PW4 regarding recovery dated 25.12.2007, as they are contradicted by those witnesses, PW2 and PW3, whose presence at the scene at that relevant moment is confirmed by them who were prosecution witnesses.
Fifthly, trial judge, at page 60 of the impugned judgment, concluded that since prosecution evidences are of unimpeachable nature, evidence of DW1, wife of appellant cannot be given any credence. This opinion by the trial judge is erroneous as the same view was formed only because DW 1 is the wife of the appellant and was a related and interested witness. Trial judge has not appreciated her evidence on it's intrinsic worth and merely because of relationship has discarded her evidence, which seems to be a wrong approach. There cannot be two scales and parameters for judging, appreciating and analysing evidences of prosecution and the accused. Truthfulness or otherwise of defence witnesses depends upon facts and circumstances of each case and has to be analysed on the touch stone of it's intrinsic worth and credibility and not on mere relationship alone. DW1 was supported by other defence witnesses also including an SDM and when at least two prosecution witnesses, who were police personnel, were not found reliable regarding major recovery alleged against the appellant, evidence of DW1 could not have been discarded merely on flimsy plea of she being wife of appellant and therefore is an unreliable witness. Thus trial court adopted a wrong and misdirected approach and hence it's conclusions are not infallible.
Sixthly, trial court, at page 62 of the impugned decision, heavely relied upon previous statement of DW1 Smt. Kamla Devi recorded by SDM , DW5, in his Magisterial inquiry to lend credence to the prosecution version, which approach and opinion by the trial judge is illegal and wholly perverse for the reasons,(i) any statement given by a living witness, during course of an inquiry is his/ her previous statement which can be utilized only for the purposes of contradiction and for no other purpose and, that too, only when that witness enters into the witness box to testify during trial.(ii) statement of a witness cannot be confronted by another witness, unless the same has been put to the maker of that statement (iii) Statement made by DW1 during inquiry conducted by Sub Divisional Magistrate, DW5 could be put to her only and to nobody else, as is provided u/s 145 Evidence Act. Such a statement certainly cannot be utilized for the purposes of corroborating prosecution case(ii) the only two exceptions to the above rule of admissibility will be found in sections 32(1) and 157 Evidence Act. Section 32(1) relates to those 161 Cr.P.C. statements, which relates to the cause of death of the maker of it, given under the expectation of death, in those cases, where death of the maker itself is being called in question and section 157 provides that any statement made at or about the time when the fact took place can be utilized to corroborate a witness when he deposes that fact before the court(iii) in the present case none of the two exception apply. It is not a case where death of the maker ie: DW1 is in question and secondly DW1 did not made any such statement when she entered into the witness box and deposed as a defence witness. No question was put to her in respect of any telephone call being received by her and consequently mention of the same in the impugned judgement by the trial judge is wholly illegal(iv) unless DW1 make such a statement section 157 Evidence Act does not apply. For seeking corroboration, previous statement has to be brought to the notice of the maker of it (v) alleged previous statement was never made by DW1 at or about when the incident occurred. Her statement is alleged to have been recorded by Magistrate during Magisterial inquiry. Painted with above flaws trial court could not have adverted to the said inadmissible previous statement to corroborate prosecution allegations and to the contrary, at the worst, it could have utilized it only to contradict DW1 after drawing her attention to such statement and for no other purpose. In this respect regard can be had to following apex court decisions:-
IN Chaudhari Ramjibhai Narasangbhai v. State of Gujarat :AIR 2004 SUPREME COURT 313 it has been held by the apex court as under:-
"Section 145 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') applies when same person makes two contradictory statements. It is not permissible in law to draw adverse inference because of alleged contradictions between one prosecution witness vis-a-vis statement of other witnesses. It is not open to court to completely demolish evidence of one witness by referring to the evidence of other witnesses. Witnesses can only be contradicted in terms of Section 145 of the Evidence Act by his own previous statement and not with the statement of any other witness. (See Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839). As was held in the said case, Section 145 applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under Section 145 of the Evidence Act only. Section 145 has no application where a witness is sought to be contradicted not by his own statement but by the statement of another witness."
In Majid versus State of Haryana: AIR 2002 SC 382 it has been held by the apex court as under:-
"14. If the former statement was in writing or was reduced to writing, Section 145 of the Act requires that attention of the witness must be called to those parts of it which are used for the purpose of contradicting him. Here the statement allegedly made by PW-6 to DW-1 was not in writing ,nor was it reduced to writing . Nonetheless if the object of examing DW-1 as a Witness was to discredit PW-6 it is only fair to insist that PW-6 himself should have been given an opportunity to explain it. Without PW-6 being asked about that aspect,it is unreasonable to expect PW-6 to explain about it. Hence it is immaterial that the statement claimed by DW-1 as made to him by PW-6 was not reduced to writing.
15. When PW-6 was cross- examined by the defence counsel he was not asked anything about the alleged statement made by him to DW-1. In such a situation we cannot give any credence to the evidence of DW-1."
In Rajendra Singh versus State of Bihar :AIR 2000 SC 1779 it has been held by the apex court as under:-
"Then again on scrutiny of the evidence PW-8 it is crystal clear that the witness has not been confronted with that part of his alleged former statement which the defence want him to be contradicted. The witness has merely been asked as to whether he stated before the Magistrate that accused Surendra has assaulted Kameshwar to which he had replied he does not recall as to what he stated before the Magistrate. In this state of affairs it is difficult for us to hold that the provisions of Section 145 of the Evidence Act has been complied with in the case in hand."
Further even in respect of previous statement recorded by the I.O. u/s 161 trite law can be mentioned in the words of the apex court as under.
In Baldev Singh versus State of Punjab:AIR 1991 SC 31 it has been held by the apex court as under:-
"Needless to stress that the statement recorded under S. 161 of the Code of Criminal Procedure shall not be used for any purpose except to contradict a witness in the manner prescribed" in the proviso to Sec. 162(1) and that the first information report is not a substantial piece of evidence."
In Hazari Lal versus State ( Delhi Administration) :AIR SC 873it has been held by the apex court as under:-
"7. The learned counsel was right in his submission about the free use made by the Courts below of statements of witnesses recorded during the course of investigation. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by S. 145 of the Indian Evidence Act. Where any part of such statement is so used any part thereof may also be used in the re-examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exception to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of S. 32 (1) of the Indian Evidence Act or permitted to be proved under Section 27 of the Indian Evidence Act. Section 145 of the Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The Courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation. Shri H. S. Marwah, learned counsel for the Delhi Administration amazed us by advancing the argument that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of "proved" in Section 3 of the Evidence Act which is, "a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man, ought, in the circumstances of the particular case to act upon the supposition that it exists". We need say no more on the submission of Shri Marwah except that the definition of proved does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred."
Moreover statement was made by DW1 to DW5, which was reduced in writing but no record of that evidence was produced by the prosecution or the defence and hence it was illegal on the part of trial court to rely on such inadmissible evidence (vi) alleged statement by DW1 in the Magisterial inquiry was hearsay and was inadmissible. Some unknown caller had uttered some threats to DW1 on phone, which, though was not admitted by DW1 during trial nor she stated any sentence about it, is alleged to have been stated by her before DW5 during Magisterial inquiry, which Magistrate stated before the trial court during trial that DW1 has stated such fact before him in the course of his inquiry is the worst kind of hearsay evidence and hence was not admissible at all. Neither the caller is known nor DW1testified regarding any such telephone call nor she was asked about it by the prosecution. Without affording DW1 an opportunity to accept or deny any such phone received by her, seeking corroboration of prosecution case from such previous statement was impermissible and trial court committed patent legal error on this aspect. It could not have utilised such previous statement for corroboration at all and from this angle impugned judgement is illegal. In Chaudhari Ramjibhai Narasangbhai v. State of Gujarat: AIR 2004 SUPREME COURT 313 it has been held by the apex court as under:-
"Witnesses can only be contradicted in terms of Section 145 of the Evidence Act by his own previous statement and not with the statement of any other witness. (See Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839)"
Further it has ben observed by the apex court in Mohar Rai versus State of Bihar: 1968 SC 1281 as under:-
"The trial Court and the High Court relied on Bharath Rai's statement that it was Naulakh Rai who fired a pistol to contradict the statement of Mohan Rai in his complaint that a pistol was fired by Budhnath. No portion of Ex. 4 could have been used for that purpose either under Section 157 or Section 145 of the Evidence Act. As Bharath Rai was not examined as a witness in the present case his previous statement could not have been used either to contradict his evidence or corroborate it even if it is to be held that it is a statement coming under Section 154 of the Code of Criminal Procedure. See Nisar Ali v. State of U. P., AIR 1957 SC 366."
In Mohanlal Gangaram Gehani v. State of Maharashtra: AIR 1982 SUPREME COURT 839 it has been held by the apex court as under:-
"13. It is obvious from a perusal of Section 145 that it applies only to cases where, the same person makes two contradictory, statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under Section 145. In other words, where the statement made by a person or witness is contradicted not by his own statement but by the statement of Another prosecution witness, the question of the application of S. 145 does not arise. To illustrate, we might give an instance - suppose A, a prosecution witness, makes a particular statement regarding the part played by an accused but another witness B makes a statement which is inconsistent with the statement made by A, in such a case Section 145 of the Evidence Act is not at all attracted. Indeed, if the interpretation placed by the High Court is accepted, then it will be extremely difficult for an accused or a party to rely on the inter se contradiction of various witnesses and every time when the contradiction is made, the previous witness would have to be recalled for the purpose of contradiction. This was neither the purport nor the object of S. 145 of the Evidence Act.
14. For instance, in the instant case, if P. W. 11 had been examined under S. 164 of the Criminal P. C. or before a committing Court and made a particular statement which was contradictory to a statement made in the Sessions Court, then S. 145 would have applied if the accused wanted to rely on the contradiction. Such, however, is not the position because the evidence of P. W. 11 is not only consistent throughout but the earlier statement recorded by her can be taken to corroborate her. There was no question of contradicting the statement of P. W. 11 by her previous or subsequent statement. On the other hand, Dr. Heena was a prosecution witness whose statement that Shetty had named Tiny on the earliest occasion, was an admission by a prosecution witness which threw considerable doubt on the complicity of the appellant in the occurrence. If Shetty stated in his evidence that he named A-1 (Mohanlal) then that would be a statement which was contradictory to that of P. W. 11 and the question will be which of the two statements should be preferred. If Dr. Heena had made two inconsistent statements then only Section 145 would have applied.
15. In Bishwanath Prasad v. Dwarka Prasad, (1974) 2 SCR 124 : (AIR 1974 SC 117), while dwelling upon a distinction between an admission and a statement to which Section 145 would apply, this court observed as follows (at p. 119 of AIR) :
"In the former case an admission by a party is substantive evidence if it fulfills the requirements of S. 21 of the Evidence Act; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore, in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by S. 145 of the Evidence Act."
16. The statement made by P. W. 11 was, therefore, an admission of a prosecution witness and if it was inconsistent with the statement made by another prosecution witness namely Shetty, there was no question of the application of S. 145 of the Evidence Act which did not apply to such a case in terms.
17. Thus, the reason given by the High Court for distrusting the evidence of Dr. Heena is wholly unsustainable. Moreover, the statement of the injured to Dr. Heena being the first statement in point of time must be preferred to any subsequent statement that Shetty may have made. In fact, the admitted position is that Shetty did not know the appellant before the occurrence nor did he know his name which was disclosed to him by one Salim. Therefore, Salim who is now dead, being the source of information of Shetty would be of doubtful admissibility as it is not covered by S. 32 of the Evidence Act. And, once we believe the evidence of P. W. 11, as we must, then the entire bottom out of the prosecution case is knocked out."
On this propositions other supporting apex court decisions are Biswanath Prasad and others versus Dwarka Prasada and others: AIR 1974 SC 117; Dhanabal and another versus State of T.N.: AIR 1980 SC 628; State of Rajasthan versus Kartar Singh:AIR 1970 SC 1305.
Seventhly, trial court discarded report by SDM, DW5, for the premise that he had not recorded statements of any police personnel, but in this respect it completely overlooked and ignored statement by DW5 that he had made publication in papers calling for police personnel to give oral and documentary evidences before him but they did not obliged him with that. SDM was not expected to linger on the inquiry and beg police raiding party to appear before him. He did what ever was possible for him to do. Instead of taking an exception to the conduct of police personnel, trial judge wrongly castigated report by SDM, DW5. Thus conclusions arrived at by the trial court that defence evidence is not believable is based on a wrong approach. Appellant was required only to establish his case on probabilities and was not required to prove it to the hilt and it seems that trial court forgot to apply this golden rule of criminal jurisprudence.
Eighthly, trial court brushed aside it's own observations regarding difference in colour in samples produced before it and original contraband as is clear from pages 62/63 of it's impugned judgment. Once trial court was of the view that there is difference between both it was it's onerous responsibility to separate the grain from the chaff and get to the truth of the matter. Instead of doing that, trial court shifted burden of proof on the accused shoulders to explain the discrepancy occurred in prosecution version. This approach by the trial judge is wrong application of law as accused is not expected to establish and explain discrepancies occurring in prosecution evidences. He had only to create a reasonable doubt in the mind of the court regarding genuineness about the prosecution story, which appellant did. It is to be noted that initial burden of proof never shifts from the shoulders of the prosecution and it is only when the prosecution has discharged it's initial burden of proof that burden shifts on accused to probabalise his defence or demolish prosecution allegations. In this respect following observations by the apex court in Noor Aga versus State of Punjab : AIR 2009 SC (Suppl) 852 can be aptly referred to:-
"80. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.
81. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.
82. Whether the burden on the accused is a legal burden or an evidentiary burden would depend on the statute in question. The purport and object thereof must also be taken into consideration in determining the said question. It must pass the test of doctrine of proportionality. The difficulties faced by the prosecution in certain cases may be held to be sufficient to arrive at an opinion that the burden on the accused is an evidentiary burden and not merely a legal burden. The trial must be fair. The accused must be provided with opportunities to effectively defend himself. In Sheldrake v. Director of Public Prosecutions [(2005) 1 All ER 237] in the following terms :
"21. From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to States to define the constituent elements of a criminal offence, excluding the requirements of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member States from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case."
(Emphasis added) Moreover it is to be noted that trial court was not expected to be a silent spectator to the trial procedure and was required to elicit the real truth which function it failed to perform. Once it had made observations regarding differences in sample colours it was required of it to get the differences explained and uncertainty cleared.
Ninethly, trial court itself castigated police investigation vide pages 63/64 of it's impugned decision and concluded that it was helpless in drawing conclusions regarding source of contraband. It should have then considered the question of fair and impartiality of investigation conducted by the first I.O., who never appeared before it to testify and thereby left it guessing.
Besides above damaging factors, other unconvincing features of the prosecution allegations which does not inspire any confidence is the vacillating evidences of all the fact witnesses regarding places of recoveries. In respect of Awasthy park, PW1 testified that he does not know how many outlets Awasthy park had, which side is the main exit, whether gates are attached or not. He also didn't know on which side or which direction he was from the gate,etc. PW1 even failed to inform colour of accused pant and shirt. PW2 also showed ignorance regarding above facts. PW2 also failed to divulge in court regarding exact attire worn by the appellant, it's design and colour. Both the witnesses were testifying in court after a short gap of one year and two months and therefore not much of a time had lapsed since date of the incident and their depositions. In such view omissions about relevant facts erodes credibility of their testimonies.PW2 could not disclose even the number of accused motor cycle. All these facts assumes significance because it was PW2 who had scribed the recovery memo at the dictation of PW1, who is the arresting officer.
Reverting back to recovery dated 25.12.2007, in respect of topography of appellant's house and inking of recovery memo, PW1 stated that single main door of the house of appellant is towards east, and after entering inside the house, there is a court yard( Angan) and no room. On one side of it is the tin shade, and, on the other side, it has a room and a verandah, and recovered smack was kept inside the room in a full size safe, the colour and size of which he could not state. He testified that recovery memo was prepared outside appellant's house in open space. Contrary to PW1, second witness PW2 could not state direction of the main door of appellant's house and contradicted PW1 by deposing that after entering inside house there were two rooms in barrack shape, one after another, and access to back room is from front room. He could not describe shape, size of the bag and what was inscribed on it in English. He made categorical denial that any recovery was made in his presence. This witness has been rightly disbelieved by the trial judge himself regarding recovery dated 25.12.2007. Third fact witness PW3, has stated mixed facts regarding map of appellant's house and denied any recovery being made in his witnessing and therefore has correctly been disbelieved by the trial judge regarding recovery made from the appellant's house. Coming to the evidence of PW 4 CO, on this aspect, he could not divulge the direction of appellant's house and how many doors it had. He denied existence of any court yard (Angan) and pleaded ignorance regarding direction of the room where almirah was kept and how many shelves almirah had. He further contradicted other witnesses by stating that recovery memo was sketched by PW2 inside the same room from where smack was recovered and he claims to have signed the recovery memo inside the same room. It is recollected here that according to PW3 recovery memo was prepared in court yard( Angan) sitting on a cot, while PW1 and PW2 testified that the same was inked sitting outside the house in the open space of the precinct. Further, PW4 could not describe how many pockets bag containing narcotics had and what was the colour of polythine bags in which narcotics were kept. He also stated that from the disclosure statement made by accused and police that he had come to know about the recovery of smack. His movement has not been recorded in his office record. Evidence of PW7 on this aspect does not improve the situation at all. His depositions, as are recorded in the impugned judgement at pages 43/44, makes the matter more worse. In short PW7, inspector CBCID, does not know anything about the places of recovery of six grams of smack, nor he has supported other PWs on house topography. Thus regarding house map and preparation of recovery memo, recovery of narcotics, prosecution witnesses have given contradictory, unconvincing and irreconcilable statements. None of them supported and lend credence to the other and consequently none of them can be relied upon. In fact two of them have been disbelieved by the trial judge himself. In-credible evidences regarding shape and size of almirah, shape and size of black bag, colour of polythene,etc. further adds negative colour to the prosecution case. All this, in my opinion, is a serious blow to the authenticity and truthfulness about prosecution allegations regarding recovery being made from the house of the appellant, on 25.12.2007, especially when no independent support is coming forth to substantiate it.
Another criticism is regarding rejection of defence witnesses. In this respect trial court rejected evidences of DW 1 to 4 for the reason that they were interested and related to the appellant. It did not scan their evidences for their intrinsic worth. All of them supported defence case of falsely implicating appellant. PW5 Sub Divisional Magistrate (Sadar) who is an independent person and a responsible officer also submitted his report favouring appellant's defence. In his inquiry none of the arresting party member appeared to narrate the facts inspite of publication being made for that purpose. They even did not tender any documentary evidence also. Criticism of report by SDM in the impugned judgement by the trial judge is not fair. Whereas prosecution tendered wavering evidences, defence witnesses struck to their defence of false implication. Prosecution could not muster courage to suggest DW5 that members of searching and raiding party were ready to appear before him and that he had not recorded their statements. In absence of any such suggestion, evidence by SDM that none of the member of searching and raiding party appeared before him to evidence is a correct statement of fact which trial court ignored without any valid explaination.
Another factor, which act against the prosecution is very unsatisfactory nature of recording of 313 Cr.P.C. statement of the appellant. No question regarding receiving of secret information was put to the appellant, no report from forensic science laboratory was asked, no incriminating circumstances appearing in statements of PWs were asked, no question regarding investigation conducted by 1st I.O. was asked, no question regarding recovery from the iron safe inside room from appellant's house was asked, no question regarding preparation of documents and compliance of mandatory requirements u/s 42,50,57 NDPS Act were put to him and thereby denying him opportunity to explain all these incriminating circumstances on which reliance has been placed by the trial judge. In fact examination of the appellant u/s 313 is no examination at all and therefore those incriminating circumstances which were not put to the appellant cannot be utilized against him. None asking of these very important circumstances and not affording any opportunity to the appellant to explain them certainly had an adverse effect on the appellant's case and had caused prejudiced to him, as his entire defence version is that of false implication and preparation of false documents, after arresting him from Chaurasia Petrol pump in the afternoon, while he was proceeding on his motor cycle along with his family- wife DW1 and two daughters to take part in sacred fire offerings in a Yajna. Only as an example question No.7 put to the appellant regarding depositions of witnesses is quoted below:-
"question:-7 Aa. Sa,1(PW1) Incharge inspector Sri Manoj Kumar Kaushik, Aa Sa2(PW2)Sub Inspector K.N.Singh, Aa.Sa.3(PW3)SI Chaturbhuj Singh, Aa Sa4(PW4)CO Sadar K.K.Bhalla, Aa.Sa.5(PW5)Incharge Inspector R.N.Singh, Aa.Sa.6(PW6)Constable Narain Babu Tiwari Aa.Sa.7(PW7) CBCID Inspector Ram Naresh Yadav testimonies were heard by you, what you have to say?"
Above is no examination at all. Question is composite, un-understandable and confusing. Such type of accused examination has been deprecated by the apex court time and again. Some of the apex court decisions in this respect are referred to below.
In Ganesh Gogoi versus State of Asaam:AIR 2009 SC 2955 it has been held by the apex court as under:-
" It does not appear that any witness has deposed that the appellant is a member of ULFA. Therefore, it is a very unfair question. The Court has allegedly convicted the appellant under Section 3(2)(i) but the ingredients of the Section 3(2)(i) were not been put to him. Therefore, there has not been a fair examination under Section 313 of the Cr.P.C. at all. The provisions of Section 313 are for the benefit of the accused and are there to give the accused an opportunity to explain the "circumstances appearing in the evidence against him". In Basavaraj R. Patil and others v. State of Karnataka and others - (2000) 8 SCC 740, this Court held that those provisions are not meant to nail the accused to his disadvantage but are meant for his benefit. These provisions are based on the salutary principles of natural justice and the maxim 'audi alteram partem' has been enshrined in them. Therefore, the examination under Section 313 has to be of utmost fairness. But that has not been done here. This is also a factor vitiating the trial."
In Sanatan Naskar and another versus State of W.B.: AIR 2010SC 3570it has been held by the Supreme Court as under:-
"10. The answers by an accused under Section 313 of the Cr.PC are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Section 313 of the Cr. PC is wide and is not a mere formality. Let us examine the essential features of this section and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Cr. PC. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr. PC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and, besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) of Cr. PC explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for, any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Cr.PC as it cannot be regarded as a substantive piece of evidence. In the case of Vijendrajit v. State of Bombay [AIR 1953 SC 247], the Court held as under :
"(3)..................As the appellant admitted that he was in charge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under S.342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accused's statement and excluded the exculpatory part does not seem to be correct. The statement under S.342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no intimate connection with the statement concerning the possession of the godown."
In State of Punjab versus Hari Singh: AIR 2009 SC 1966 it has been observed by the apex court as under:-
"44. When the accused was examined under Section 313 Cr. P.C., the essence of accusation was not brought to his notice, more particularly, that possession aspect, as was observed by this Court in Avtar Singha and Ors. v. State of Punjab (2002 (7) SCC 419). The effect of such omission vitally affects the prosecution case."
On the strength of above decisions, and applying same principles in the present appeal, the inescapable conclusion will be that in absence of fair and impartial examination of the appellant his assailed conviction in this appeal cannot be sustained as appellant was prejudiced in his case and principle of natural justice has been violated.
Other damaging features appearing during trial, against the prosecution are non examination of all the prosecution witnesses at the earliest by the I.O. u/s 161 Cr.P.C., which interrogative examinations were done after a gap of twenty days with out any valid explanation coming forth from the prosecution which casts a doubt on the prosecution story. Two forensic science laboratory reports were neither proved nor were got exhibited during trial. This was a mistake requiring explanation, which was not done. No attempt was made to investigate activities of real kingpin. But for 6 gms of smack and a single note of Rs. 50 no other article, money, watch, purse, etc., was recovered from appellant's possession on 24.12.2007 which casts a doubt on the genuineness of the prosecution story.
Concluding discussion, I find that prosecution has failed to conclusively establish recovery of 6 gms of smack narcotic from appellant's possession on 24.1.2007 and further it also failed to establish recovery of 4.15 kgs of smack from the safe of his house on 25.12.2007, as alleged by it and therefore appellant deserves acquittal for both the charges.
Since recovery from the possession of the appellant on 24.12.2007 itself is disproved, his conviction for the charge under section 489 ( C ) IPC also cannot be sustained as entire arrest and seizure is doubtful.
In the net result, present appeal by the appellant Shyam Babu Vishwakarma @ Ram Babu alias Shyam Babu is allowed. His conviction and sentences u/s 22 ( C ) NDPS Act and 489 ( C ) IPC, recorded by Additional Sessions Judge, Court No.1, Banda, vide impugned judgement and order dated 25.5.2010, passed in Special Case No. 4 of 2008, State Vs. Shyam Babu Vishwakarma and S.T. No. 64 of 2008, State Vs. Ram Babu alias Shyam Babu are hereby set aside and he is acquitted of both the charges. Appellant is in jail. He shall be set at liberty forthwith unless wanted in some other crime.
Let a copy of this judgement be certified to the trial court for it's intimation.
Dt/14.10.2011 RK/SKS/Arvind