In Vinod Das vs. The State of Bihar, Patna High Court's Division Bench of Justices Ashutosh Kumar and Khatim Reza set aside the conviction of Vinod Das and Brijesh Das by under Sections 20(b)(ii)(C) and 23(c) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 by the Trial Court's judgment dated July 22, 2021. By order dated July 26, 2021, both were sentenced to undergo rigorous imprisonment for 15 years for each offence separately, to pay a fine of Rs. One lakh for each offence. The High Court's judgement dated October 4, 2024 recorded several discrepancies in carrying out the investigation which made "the prosecution case highly suspect." The Court was unable to put its "imprimatur on the judgment of the Trial Court convicting the appellants for the offence."
It all began with Shri Ram Kumar, an officer of the S.S.B. receiving secret information on September 18, 2018 that two persons are coming to India with narcotics in huge quantity and they are likely to cross the border sometimes around 7:30 PM on the same day. This information was communicated to his senior officer, viz., Commandant Rajesh Tikku, who constituted a team to lay a seize which included Shri Ram Kumar as well. Two independent persons were chosen as witnesses in advance. They are Gautam Sah and Ram Janam who have been examined at the trial as prosecution witnesses (PWs 5 and 6). Since there was prior information to Ram Kumar, the testing kit and weighing machine was also carried by the team. Two persons, the appellants were found coming from Nepal side after crossing the border. Both were apprehended. They were found to be in possession of a bag containing 12 packets of narcotics which tested positive for charas, a contraband. Samples were drawn in presence of Rajesh Tikku who, apart from the Commandant of S.S.B., a Gazetted Officer. The samples and the rest of the seized narcotics were sealed; the appellants were arrested and the case was lodged. On the basis of the written report, Bhangaha P.S. Case No. 67 of 2018 dated July 18, 2018 was registered for investigation under Sections 20(c), 22, 23, 24 & 28 of the Act. The investigation was conducted by Paras Kumar, one of the PWs.
The Court examined the deposition of Shri Ram Kumar (PW-1) on whose report the FIR was lodged. Although he supported the prosecution case, but he admitted that he had not reduced the secret information into writing even after the raid was conducted. He simply informed his superior officer, viz., Commandant/ Rajesh Tikku and proceeded to the place from where the miscreants could be apprehended. The samples were drawn by him in presence of Rajesh Tikku. From his deposition, it became clear that two of the witnesses were chosen from before to be witnesses to the seizure but during the course of trial, both of them, viz., PW-5 and PW-6 have expressed their complete ignorance about any such recovery having been made in their presence. They deposed that they were made to sign on a blank sheet of paper.
In accordance with Section 42 of the Act, it was necessary for PW-1 to have reduced such information into writing within 72 hours for further confirmation that the provisions contained in the Act were followed. The appellants' counsel argued that there was a total violation of Section 42 of the Act and the procedure for sampling.
The High Court relied on Supreme Court's decisions in Abdul Rashid Ibrahim Mansuri vs. State of Gujarat (2000) 2 SCC 513 and Sajan Abraham vs. State of Kerala (2001) 6 SCC 692, wherein it was held that the officer on receiving the information from any person had to record it in writing in the register concerned and had to send a copy of it to his superior officer in accordance with Section 42 of the Act. However, if the information is received when the officer is not in the police station, but while he is on the move, either on patrol duty or otherwise or either by mobile phone or other means and the information would call for immediate action and any delay would result in the goods or evidence being removed or destroyed, then it would not be feasible or practical to go for total compliance of Section 42. In such a situation, he could take action and only thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the superior officer.
In both these cases, the Court had observed that the compliance with the requirements of Section 42 should normally precede the entry, search and seizure by the officer; but in special circumstances, involving emergent situations, the recording of information in writing and sending a copy thereof to the superior officer, could be postponed by a reasonable period. The question is one of urgency and experience.
The High Court also drew on the decision of Supreme Court's Constitution Bench in Karnail Singh vs. State of Haryana (2009) 8 SCC 539, wherein it was held that while total non-compliance with the requirement of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with the Section. Where a police officer does not record the information at all, and does not inform the officer superior to him at all, then it would be a clear violation of Section 42 of the Act. However, whether there is adequate or substantial compliance with Section 42 or not is required to be decided in each case.
The High Court also referred to Supreme Court's decision in State of Rajasthan vs. Jagraj Singh @ Hansa (2016) 11 SCC 687; and Boota Singh and Ors. vs. State of Haryana (2021) 19 SCC 606.
The High Court noted another infirmity in the case. In accordance with the Standing Instructions No. 1/88 and 1/89, the samples are required to be drawn before a Gazetted Officer or before an authorised officer. It appears that the samples were drawn in presence of one of the members of the team. Even if one of the members of the team was a Commandant with the SSB and was a Gazetted Officer, the requirements would not be said to be complied with. Because even the officer has not been examined at the trial. The samples were drawn on September 18, 2018 and kept in the Malkhana. There is nothing on record to indicate that the samples as also the left over narcotics were appropriately preserved in the dedicated Malkhana. Beyond the disclosure of the members of the raiding team and the Investigator, there is nothing on record to lend credence to such an assertion of the prosecution.
The High Court observed that although the samples were drawn on September 18, 2018, but those samples were dispatched to the Forensic Science Laboratory, Muzaffarpur only on January 11, 2019 i.e. after delay of about more than 100 days. Though the parcels were sent by special messenger but it was received in the FSL on January 15, 2019. Given the fact that the samples were not drawn in accordance with the procedure prescribed and the unusual delay in sending those samples to the laboratory, the report of positive test result for the Charas samples tested for Charas "is of no use". The material exhibits produced for the inspection of the Court does not cure the defect.
The High Court noted that it is surprising that in his cross-examination, PW-4 has claimed to have drawn the samples himself. The samples were drawn by PW-1 at the place of seizure. Even otherwise, there is no entry anywhere in the records of the case of PW-4 having taken out the samples. The High Court found that neither PW-5 nor PW-6, the seizure-list witnesses, who had appended their signature on the proforma of apprehension have supported the prosecution case. These discrepancies in carrying out the investigation makes the prosecution case highly suspect.
The High Court's judgement authored by Justice Ashutosh Kumar acquitted the appellants of the charges and directed the authorities to release them from the jail.
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