# Smt. Shraswati v. State of U.P

- **Citation:** (2023) 8 ILRA 65
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-28
- **Case number:** Criminal Appeal No. 213 of 2019
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shraswati-v-state-of-u-p-50694
- **Pages:** 13

## Headnote

Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Sections 8, 17, 20, 35 & 54 - Code of
Criminal Procedure, 1973 - Sections 161 &
313 - Appeal against conviction - Rigorous
imprisonment with fine - As per recovery
memo, during search, opium along with
nepali currency recovered from possession
of appellant. (Para 2, 3)

Statementof P.Ws.1 to 3 shows noncompliance of Section 50, NDPS Act, as
mandatory, prosecution not assigned any
reason for not producing other members
of raiding team as prosecution witness -
Non-compliance of Section 57, NDPS Act
and Standing Instructions - Link evidence
not complete as malkhana register not
produced - No independent eye-witness to
alleged recovery - Appellant prior to
search not produced before Magistrate,
nor effort made by P.W.1 and P.W.2 to
produce
her
-
Prosecuting
agency
produced only two witnesses of fact
despite fact that as per prosecution case
itself, other witnesses of fact present at
place of occurrence, prosecution failed to
66 INDIAN LAW REPORTS ALLAHABAD SERIES
give justification - Prosecution case based
on sole testimony of PW-1 and PW-2 - The
seal,
used
for
sealing
samples
of
contraband substance, not sent to FSL
rather kept by PW-1 himself - Recovery of
contraband not proved by prosecution -
Impugned order set aside. (Para 30 to 35)

Appeal allowed. (E-14)

List of Cases cited:

## Text

_Characters 0–39,674 of 43,784. This is a partial read: ask again with offset=39674 for what follows._

8 All. Smt. Shraswati Vs. State of U.P.
65
possession of the flats was not delivered
within the stipulated period and that the
flats were not finished in a proper manner.
It is not that the complainant has initiated
the
criminal
proceedings
for
merely
punishment of the accused persons and he
has initiated civil proceedings separately
for
enforcement
of
his
rights,
the
complainant
has
initiated
criminal
proceedings
only
which
prima
facie
indicates that the criminal proceedings have
been initiated with an oblique motive to
coerce the accused persons to redress the
civil grievances of the veiled commercial
corporate entity being represented by the
complainant.

18. Having considered the aforesaid
facts and circumstances of the case,
coupled with the fact that the applicant is
languishing in jail for more than one year
and without making any observation, which
may affect the merits of the case, I am of
the view that the applicant is entitled to be
released on bail in the aforesaid crime.

19. Accordingly, this bail application
stands allowed.

20. Let the applicant Anil Kumar
Tulsiani be released on bail in Case Crime
No. 595 of 2021, under Sections 409, 420,
504, 506, 467, 468, 471 & 120-B IPC,
Police Station Vibhuti Khand, District
Lucknow on furnishing a personal bond
and two sureties each in the like amount to
the
satisfaction
of
magistrate/court
concerned,
subject
to
following
conditions:-

(i) the applicant shall not tamper
with the prosecution evidence;

(ii)
the
applicant
shall
not
pressurize the prosecution witnesses;

(iii) the applicant shall appear on
each and every date fixed by the trial court.
----------
(2023) 8 ILRA 65
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.08.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 213 of 2019

Smt. Shraswati ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Piyush Kumar Singh

Counsel for the Respondent:
Govt. Advocate

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Sections 8, 17, 20, 35 & 54 - Code of
Criminal Procedure, 1973 - Sections 161 &
313 - Appeal against conviction - Rigorous
imprisonment with fine - As per recovery
memo, during search, opium along with
nepali currency recovered from possession
of appellant. (Para 2, 3)

Statementof P.Ws.1 to 3 shows noncompliance of Section 50, NDPS Act, as
mandatory, prosecution not assigned any
reason for not producing other members
of raiding team as prosecution witness -
Non-compliance of Section 57, NDPS Act
and Standing Instructions - Link evidence
not complete as malkhana register not
produced - No independent eye-witness to
alleged recovery - Appellant prior to
search not produced before Magistrate,
nor effort made by P.W.1 and P.W.2 to
produce
her
-
Prosecuting
agency
produced only two witnesses of fact
despite fact that as per prosecution case
itself, other witnesses of fact present at
place of occurrence, prosecution failed to
66 INDIAN LAW REPORTS ALLAHABAD SERIES
give justification - Prosecution case based
on sole testimony of PW-1 and PW-2 - The
seal,
used
for
sealing
samples
of
contraband substance, not sent to FSL
rather kept by PW-1 himself - Recovery of
contraband not proved by prosecution -
Impugned order set aside. (Para 30 to 35)

Appeal allowed. (E-14)

List of Cases cited:

1. Arif Khan alias Agha Khan Vs St. of
Uttarakhand, AIR 2018 SC 2123, (Para 28)

2. Vijaysinh Chandubha Jadeja Vs St. of
Guj.reported in 2011 (1) SCC 609, (Para 32)

3. Ram Pal Yadav Vs St. of U.P. reported in 2008
(1) JIC 776, (Para 10, 11)

4. St. of Punj. Vs Balbir Singh reported in (1994)
3 SCC 294, (Para 24)

5. Union of India Vs Bal Mukund & ors., 2009
(12) SCC 161, (Para 36)

6. Valsala Vs St. of Kerala, AIR 1994 S.C. 117,
(Para 4)

7. St. of Raj. Vs Gurmail Singh, 2005 (1) JIC 844
(SC), (Para 3)
(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

(1) Heard Shri Piyush Kumar Singh,
learned Counsel for the appellant and Ms.
Nikita Mishra, learned A.G.A. for the
respondent State.

(2) This criminal appeal under
Section 374 (2) of the Code of Criminal
Procedure, 1973 has been preferred by the
appellant, Smt. Shraswati, challenging the
judgment and order dated 27.01.2017
passed by the Additional Session Judge,
F.T.C.-II, Bahraich in Special Sessions Trial
No. 48 of 2012 : State of U.P. vs. Smt.
Shraswati, arising out of Case Crime No.
403 of 2012, under Sections 8/17/20 of the
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 (hereinafter referred
to as "N.D.P.S. Act, 1985"), police station
Rupaideeha, district Bahraich, whereby the
appellant was convicted under Sections
8/17/20 N.D.P.S. Act, 1985 and sentenced
him
to
undergo
12
years'
rigorous
imprisonment and a fine of Rs.1,25,000/
and in default of payment of fine to
undergo
additional
one
year
simple
imprisonment.

(3) The prosecution case as per the
recovery memo (Ext. Ka.1), is that on
29.7.2012, at 15.00 hours, an information
was received from reliable sources that one
Nepalese woman wearing red saree would
reach to India from Nepal via Rupaideeha
main road with opium. Taking this
information seriously and on the direction
of Assistant Commandant Shri Ashwani
Singh, S.I. Janak Singh along with
Constable Ganesh Singh, Umesh Prasad
Yadav, Neeraj Kumar Srivas, Suvita T.,
Neetu Pal, Sunita and Shyam Pratap Singh
had constituted a special search team;
reached at the check post of Armed Border
Force located at Nepalganj-Rupaideeha
main road along with informer; and started
waiting there for the said woman to come.
Around 17.15 hours, resembling the
description given, one Nepali woman was
seen coming from Nepal to India on a a
rickshaw. Upon a signal of the informer, the
said Nepali woman was stopped by the
woman constable for search. During search,
something seemed to be tied around the
waist of the said woman. Thereafter,
following the orders of Human Rights and
High Court, the said woman was told that
bringing and carrying opium anywhere is
an offence under Sections 8/20/17 of
N.D.P.S. Act. The said woman was asked
that whether she wants her search to be
8 All. Smt. Shraswati Vs. State of U.P.
67
made before Magistrate or any other place,
then, the said woman told that when it is
certain that she is carrying opium then they
may take the search. Thereafter, on the
spot, consent form was got prepared; it was
read
over
to
her;
and
got
her
signature/thumb
impression
on
it.
Thereafter, in the presence of Assistant
Commandant, woman Constable Suvita T.
and Sunita, who were present on the spot,
searched each other but no incriminating
material was found from them. After that,
according to the order of Assistant
Commander, Sunita T. was asked to search
the said woman. On being asked during the
search, the said woman stated her name as
Saraswati wife of Hom Bahadur, resident of
Ghorai New Bazar Gawisa Gorai, district
Dang Nepal, aged about 28 years, and from
her search, apart from the opium tied near
the waist in red cloth, nepali currency
amounting to 100/- and 20/- was recovered.
After testing the recovered opium with the
available drug testing kit, prima facie
opium was found. Thereafter, on being
weighed with the available beam scale,
total weight of the recovered opium was
3kg 500gram. From the recovered opium a
sample of 24x2 grams were drawn and the
samples were sealed in a white cloth with
the seal of SSB (Shashatra Seema Bal).
Upon enquiry, the Nepali woman said that
in the morning one man, namely, Pravesh
Budha came and said her that if she
delivers the maal (opium) to Rupaideeha
(India) bus stop, he will give her nepali
currency amounting to 6000/- and on this
assurance, she agreed to do this work.
Thereafter, on completing all necessary
formalities, she was handed over to Police
Station Rupaideeha for further action under
N.D.P.S. Act. The copy of the recovery
memo was read over to the appellant and
her signature/thumb impression was taken
on it. A copy of the recovery memo (Ext.
Ka.2) was also handed over to her, but she
torned it and threw away.

(4) On the basis of aforesaid recovery
memo (Ext. Ka.2), on 29.07.2012, at about
07:15 p.m., case crime no. 403 of 2012,
under Section 8/20/17 N.D.P.S.Act was
registered against the appellant Saraswati at
police
station
Rupaideeha,
district
Bahraich. Head Moharrir Umesh Kumar
Bhardwaj had scribed the chik F.I.R. (Ext.
Ka-1), which has been mentioned in rapat
no. 41 of the general diary of police station
Rupaideeha and Ext. Ka. 10 has been
entered on the carbon copy of it. During the
investigation, the Investigating Officer had
mentioned copy of the recovery memo,
copy of rapat and the statements recorded
under Section 161 Cr.P.C. of the scriber of
F.I.R. Constable Moharrir Umesh Kumar
Bhardwaj,
accused/appellant
Saraswati,
complainant S.I. Janak Singh, Umesh
Kumar Yadav, Head Constable Ganesh
Singh
Rawat,
Niraj
Kumar
Srivas,
Constable Suvita T., Constable Nitu Bala,
Constable Sunita, Constable Shyam Pratap
Singh, Aswani Kumar, Rasul, Moin,
Constable Indresh Kumar in the general
diary and after conducting inspection of the
place of occurrence, site plan was prepared,
which has been mentioned as Ext. Ka.7.
For testing of recovered item, docket no. A8/2 was prepared and filed the same on
Forensic Science Laboratory, Mahanagar,
Lucknow under serial no. 5830/12. After
completion of the investigation, chargesheet (Ext. Ka.8) was filed against the
accused/appellant Saraswati and on receipt
of the report from Forensic Science
Laboratory, U.P., Lucknow, the same i.e.
paper No. A-8/3 was filed.

(5) On 07.08.2014, the Additional
Sessions Judge, Court No.4, Bahraich had
framed charges against accused/appellant
68 INDIAN LAW REPORTS ALLAHABAD SERIES
Saraswati
under
Section
8/17/20
of
N.D.P.S. Act. The charges were read out to
the
accused/appellant
and
explained.
Accused/appellant pleaded not guilty to the
charges and claimed to be tried.

(6) During trial, in all, the prosecution
examined three witnesses, namely, P.W.1Janak Singh, who is the complainant of the
case; P.W.2-Suvita T., who searched the
accused/appellant on the date of the
incident; and P.W.3-Subhash Yadav, who is
the Investigating Officer of the case. In
support of its case, the prosecution has also
produced the documentary evidence viz.
consent form of accused Saraswati to
search her during the course of search (Ext.
Ka.1), Chik recovery memo (Ext. Ka.2),
the arrest form of the accused Saraswati
(Ext. Ka.3), memo of weight of recovered
opium (Ext. Ka.4), memo of search (Ext.
Ka.5), memo of the marks of fingers of left
and right hand of accused (Ext. Ka.6), siteplan (Ext. Ka.7), charge-sheet (Ext. Ka.8),
Chik F.I.R. (Ext. Ka.9), carbon copy of GD
(Ext. Ka.10).

(7) After the completion of the
prosecution evidence, the statement under
Section 313 Cr.P.C. of the accused
Saraswati was recorded, wherein her
defence was of denial. She stated that
charges are false and false recovery has
been made. She stated that due to enmity,
the complainant used to take begar from
her and upon demand of her wages, he
refused and due to this enmity, she has been
falsely implicated by showing the recovery.

(8) P.W.1-Janak Singh, who is the
complainant of the case and also the recovery
witness, had reiterated the recital contained in
the F.I.R. However, making improvement
from the recovery memo, he had deposed that
on the signal of the informer, the woman
Constable stopped her and asked her, then,
she told that she is carrying opium tied in her
waist. She was told that she has right to be
searched before any Gazetted Officer or any
Magistrate. P.W.1 had deposed that the
Nepali woman said that she does not want to
go anywhere and upon her consent, the
consent letter (Ext. Ka.1) was prepared. He
directed woman Constable Suvita T. (P.W.2)
and Sunita, who after taking search of each
other and after finding, no incriminating
article
each
other,
Suvita
T.
(P.W.2)
conducted the search of the Nepali woman
and found opium tied in her waist wrapped in
red cloth and also nepali currency amounting
to 100/- and 20/-. The recovered contraband
was tested by the drug testing kit and it was
found opium, which was weighed by beam
scale and total weight of the recovered opium
was 3 kg 500 grams, out of which, sample of
24 x 24 grams was taken from the recovered
opium in a white cloth and sealed it and rest
of the recovered opium were also sealed in a
white cloth. After that describing the offence
of Section 8/20 of the N.D.P.S. Act, the
woman was taken into custody and recovered
contraband was taken under police custody
and sample seal was prepared. He also
prepared the recovery memo (Ext. Ka.2). A
copy of the recovery memo was also given to
the accused/appellant Saraswati. He also
prepared memo of notice of arrest as well as
memo of search. He proved arrest memo
(Ext. Ka.3), memo of weight of recovered
opium (Ext. Ka.4), memo of search (Ext.
Ka.5). He took the recovered contraband, the
accused and the other documents prepared on
the spot to police station Rupiadeeha and
were
deposited
in
the
police
station
Rupiadeeha. He also deposited the recovered
contraband to Malkhana.

In the cross-examination, P.W.1
had deposed that the Nepali woman was
not searched before the Gazetted Officer or
8 All. Smt. Shraswati Vs. State of U.P.
69
the Magistrate rather she was searched in
the presence of his Senanayak. The
recovery memo was in the handwriting of
Constable Shyam Pratap. On the recovery
memo, all the eight persons of the search
team have signed the recovery memo,
which was prepared at 05:15 p.m. in the
headquarter office and the signature of
Commandant was not in the recovery
memo as he was not present at that time
and was out of station. The Investigating
Officer did not went to inspect the place of
occurrence.

(9) PW-2 Suvita T., who was posted
as Constable in 7th Battalion S.S.B.,
Nanpara Company at Rupaideeha, had also
repeated the same prosecution story. She
had deposed before the trial Court that
recovery memo was prepared by common
person, namely, Shyam Pratap Singh upon
the dictation of Janak Singh (P.W.1). She
had deposed that the recovered contraband
from accused Saraswati, which is brought
in the Court, is the same which was
recovered by her from the accused
Saraswati and identified her signature on
the same, which is Ext.1.

In cross-examination, P.W.2 had
deposed that the search of the accused was
not conducted by any Gazetted Officer
rather search was taken by them (special
team). During the general search, they
(special
team)
had
caught
Saraswati
(appellant) at the Border. She further
deposed that the entire documentation and
proceedings were done at the place where
Saraswati was caught i.e. Rupaideeha
Check Post. On the recovery memo, apart
from her, all the other members of the
search team signed on it. The signature of
the Assistant Commander is not on the
recovery memo as he was not present at the
time of recovery of contraband. The sample
seal was prepared. She did not remember
that after how much time, the recovered
contraband and the accused were sent to the
police station. She also not knew the name
of the person who took the accused to the
police station. She denied the suggestion
that opium has not been recovered from
Saraswati (appellant).

(10) P.W.3 S.I. Subhash Yadav
(P.W.3), the Investigating Officer, in his
examination-in-chief, had deposed that he
had entered the copy of the chik report in
CD-1 and recorded the statement of
Constable
Moharrir
Umesh
Kumar
Bhardwaj, scriber of the chik F.I.R. and the
statement of the accused Saraswati on the
same day and mentioned in the CD-2 on
01.08.2012. He took the statement of the
prosecution witness. He inspected the place
of occurrence and prepared the site plan
and said that the same site plan on which
Ext. Ka7 is written. On 9.8.2012 prayer for
remand was made. On 10.8.2012, he had
written the CD-4 in which he has registered
the receipts of the sample in the Forensic
Science Laboratory and took the statement
of
constable
Indresh
in
CD.
After
completing the investigation he filed the
charge-sheet against the accused Saraswati
and proved Ext. Ka-9. On 13.12.2012
SCD-1 was issued and report of the FSL
Laboratory was mentioned in the SCD in
which opium was found.

In the cross-examination, P.W.3
has stated that he inspected the site and
prepared the site plan. He deposed that he
is not aware whether the accused was
searched before the Magistrate or not as
this fact could be stated by S.S.B.
personnel, however, he wanted to know this
fact
from
the
witnesses
during
the
investigation, then, witnesses told him that
accused had consented to give her search
70 INDIAN LAW REPORTS ALLAHABAD SERIES
from the staff who caught her, therefore,
after preparing consent letter, search was
conducted. He deposed that incident was of
29.07.2012 and he recorded the statement
of
complainant
and
witnesses
on
01.08.2012. He prepared the docket of
sample, which was sent to the Forensic
Science Laboratory for testing on 8.8.2012
and the same was received in the Forensic
Science Laboratory on 9.8.2012. He also
deposed that the cost of the recovered
contraband according to SSB was to the
tune of Rs.35,00,000/-. He denied the
suggestion that he had conducted the entire
investigation while sitting at the police
station and he did not go to the place of
occurrence
for
conducting
the
investigation.

(11) Learned counsel for the
appellant has submitted that there is no
compliance of Section 50 of the NDPS
Act. The report of arrest and seizure have
not been sent within 48 hours to the
immediate superior officer although prior
information was received, however, the
same has not been reduced in writing.
According to him, malkhana register has
not been produced; the date of deposit in
Malkhana is not known; when the
contraband deposited in Malkhana is also
not known; test sample is missing; and
sample seal was not produced before the
trial Court. He also submitted that the
secret prior information received has not
been reduced into writing nor sent a copy
of the same to the Senior Officer as
mandated under Section 42 (2) of the
NDPS Act.

(12) Learned A.G.A. has opposed
the contention of the learned counsel for
the appellant. It is submitted on behalf of
the State that 3 kg 500 gm opium was
found from the personal search of the
accused/appellant by the search team.
The consent letter was prepared.

(13) So far as the first contention of
learned counsel for the appellant that
there is complete non-compliance of
Section 50 NDPS Act is concerned, this
Court has taken note of the fact that in
the recovery memo dated 29.7.2012, the
accused/ appellant was searched first and
after it appeared to the searched team that
there is something tied up in her waist,
she was asked for the same and then she
told that there is opium in it. After that
giving reference to the provision of
NDPS Act and human rights as well as
orders of the Courts, she was asked
whether she wanted to be searched in
front of Magistrate or anywhere else, then
she stated that once it is certain that there
is a opium with her, then, they may take
her search. The fact that as per the recovery
memo, the accused/appellant was searched
first and upon a suspicion arose that she is
carrying opium in her waist, she was given
the option to be searched before the
Magistrate
or
anywhere
else,
thus,
corroborated with the statement of P.W.2
Constable Suvita T, who, in her crossexamination, has stated that during the
general search on the border, they had
caught Saraswati. Both PW1-S.I. Janak
Singh and PW2-Savita T. had stated that
the appellant was informed of her right to
be searched before the Gazetted Officer or
the Magistrate in their examination-inchief, however, both of them had admitted
that search was not in front of any
Gazzeted Officer or Magistrate. PW1-Janak
Singh, in her cross-examination, had stated
that in the closed room, she was searched
by Constable Suvita T. (P.W.2) and she was
not searched before any Magistrate or any
Gazetted Officer rather she was searched
before her Senanayak. PW 2-Suvita T., in
8 All. Smt. Shraswati Vs. State of U.P.
71
her cross-examination, had stated that the
accused was not searched by any Gazzeted
Officer rather she was searched by them. It
is clear from the recovery memo as well as
the evidence of PW1-Janak Singh and
PW2-Suvita T. that she was not searched
before
the
Gazetted
officer
or
the
Magistrate. It is also clear that she was not
searched before any independent witnesses.

(14) From the statement of PW1Janak Singh and PW2-Suvita T., it is also
clear that none of the police officials of the
police party, who recovered the contraband
opium, were Gazetted Officer. Thus, they
were not empowered to make search the
applicant as provided under Section 50 of
the NDPS Act except in the presence of
either Magistrate or Gazzeted Officer. The
search of the recovery of the alleged
contraband opium has to be in direct
authorization and confirmation that is
requirement of Section 50 NDPS Act. It is
incumbent
and
mandatory
for
the
prosecution to prove that search and
recovery were made from the applicant in
presence of Magistrate or a Gazzeted
Officer.

(15) Hon'ble Supreme Court in the
case of Arif Khan alias Agha Khan v.
State of Uttarakhand : AIR 2018 SC 2123
has held in para 28 as under :-

"28. First, it is an admitted fact
emerging from the record of the case that
the appellant was not produced before any
Magistrate or Gazetted Officer; Second, it
is also an admitted fact that due to the
aforementioned first reason, the search and
recovery of the contraband "Charas" was
not made from the appellant in the presence
of any Magistrate or Gazetted Officer;
Third, it is also an admitted fact that none
of the police officials of the raiding party,
who recovered the contraband "Charas"
from him, was the Gazetted Officer and nor
they could be and, therefore, they were not
empowered to make search and recovery
from the appellant of the contraband
"Charas" as provided under Section 50of
the NDPS Act except in the presence of
either a Magistrate or a Gazetted Officer;
Fourth, in order to make the search and
recovery of the contraband articles from
the body of the suspect, the search and
recovery has to be in conformity with the
requirements of Section 50 of the NDPS
Act. It is, therefore, mandatory for the
prosecution to prove that the search and
recovery was made from the appellant in
the presence of a Magistrate or a Gazetted
Officer."

(16) In the case of Vijaysinh
Chandubha Jadeja Vs. State of Gujrat
reported in 2011 (1) SCC 609, Hon'ble
Supreme Court in para 32 has held that at
the first instance, an effort should be made
by the prosecuting agency to produce the
suspect before the Magistrate to ensure
generating more confidence of common
man as compared to any other officer as it
will
add
legitimacy
to
the
search
proceedings and will also strengthen the
prosecution case as well.

(17) It is not disputed rather admitted
that none of the members of the raiding
officer is gazetted officer. No effort
whatsoever was made by the raiding team
to produce the accused before the Gazetted
Officer or the Magistrate, hence it is a case
of total non-compliance of Section 50 of
NDPS Act which vitiates the search.

(18) So far as the contention of
learned counsel for the appellant that
Section 57 of the NDPS Act has not been
complied with as no report of seizure of
72 INDIAN LAW REPORTS ALLAHABAD SERIES
property has been sent within 48 hours after
the arrest to his immediate superior officer
by the arresting officer is concerned, PW1Janak Singh, PW2-Suvita T. and PW3-S.I.
Subhash Yadav, in their statement, had
nowhere stated that a report to the superior
officer under the provisions of NDPS Act
was sent. Thus prosecution has failed to
prove compliance of Section 57 of the
NDPS Act.

(19) This Court in the case of Ram
Pal Yadav Vs. State of U.P. reported in
2008 (1) JIC 776 has held that to avoid any
reasonable doubt of ante time reports, the
report under Section 57 of the NDPS Act
must be sent within 48 hours. Relevant
paragraphs 10 and 11 are extracted below :-

"10. Section 57 deals with report
of arrest and seizure. Even the Criminal
Procedure Code is based on a system of
"checks and balances" and in that Code it
has been provided that at least in respect of
a serious offence when a report is lodged at
the police station a special report should be
sent immediately to the higher officers.
Such provision has been inserted to rule out
any possibilities of ante-timed reports.
Similarly in the N.D.P.S. Act also section
57 provide that whenever any person makes
any arrest or seizure he shall submit report
thereof to his superior officer within 48
hours of such arrest of seizure. But in the
present case no such report has been
brought on record which also creates a
reasonable doubt, I find substance in these
submissions.

11. It is true that these provisions
are not mandatory and are merely directory
as was held in the case of Babubhai
Odhavji Patel and Ors Vs. State of Gujrat,
reported in 2006(1) JIC 732 (SC) : (2005)
8 SCC 725, relied upon by the learned
A.G.A. But these lapses shatter the value of
evidence and in such cases the possibilities
of plantation of the contraband and cannot
be ruled out as was held by this Court in
the case of Roshan Lal Vs. State of U.P.,
reported in 2007(2) JIC 650 (SC) : 2007
(58) ACC 723. Even if the aforesaid
provisions are directory it does not mean
that those should be given a complete go
by. In the present case these lapses do
create a ring of doubt and possibility of
plantation of contraband material as
suggested by defence cannot be ruled out."

(20) It has been submitted by learned
A.G.A. that compliance of Section 57
NDPS Act is not mandatory. As regards
Section 57 NDPS Act, the Hon'ble
Supreme Court in "State of Punjab Vs.
Balbir Singh" reported in (1994) 3 SCC
294 has held in para 24 as under:-

"24. Sections 52 and 57 come
into operation after the arrest and seizure
under the Act. Somewhat similar provisions
are also there in the CrPC. If there is any
violation of these provisions, then the Court
has to examine the effect of the same. In
that context while determining whether the
provisions of the Act to be followed after
the arrest or search are directory or
mandatory, it will have to be kept in mind
that the provisions of a statute creating
public duties are generally speaking
directory. The provisions of these two
sections
contain
certain
procedural
instructions for strict compliance by the
officers. But if there is no strict compliance
of any of these instructions that by itself
cannot render the acts done by these
officers null and void and at the most it
may affect the probative value of the
evidence regarding arrest or search and in
some cases it may invalidate such arrest or
search. But such violation by itself does not
invalidate the trial or the conviction if
8 All. Smt. Shraswati Vs. State of U.P.
73
otherwise there is sufficient material.
Therefore it has to be shown that such noncompliance has caused prejudice and
resulted in failure of justice. The officers,
however,
cannot
totally
ignore
these
provisions and if there is no proper
explanation for non- compliance or where
the officers totally ignore the provisions
then that will definitely have an adverse
effect on the prosecution case and the
courts have to appreciate the evidence and
the merits of the case bearing these aspects
in view. However, a mere non-compliance
or failure to strictly comply by itself will
not vitiate the prosecution."

(21) It is, therefore, clear that noncompliance of Section 57 of NDPS Act is not
mandatory
but
if
its
non-compliance
prejudices the accused, it will certainly have
an adverse effect on the prosecution case
keeping in view the stringent punishment
under the provisions of NDPS Act.

(22) The next submission of learned
counsel for the appellant is that the
Standing Instructions No. 1/88 and 1/89
issued by the Narcotics Control Bureau,
New Delhi have not been complied with.
He submits that sample has neither been
drawn nor sent as per the aforesaid
Standing Instructions.

(23) According to the prosecution
case, the incident took place on 29.7.2012
at 5.15 p.m. The samples were drawn on
the spot and the same were sent to the
Forensic Science Laboratory on 8.8.2012,
which was received in the Forensic Science
Laboratory on 9.8.2012 and the report of
the Forensic Science Laboratory have been
received on 17.11.2012.

(24) As per Clause 1.13 of the
Standing
Instruction
No.1/88
dated
15.03.1988,
the
samples
must
be
dispatched to the laboratory within 72
hours of seizure to avoid any legal
objection, whereas in this case, admittedly,
samples, which were drawn on 29.7.2012,
have not been sent within 72 hours but it
was sent beyond 72 hours i.e. on 8.8.2012.

(25) Para 1.21 of the aforesaid
Standing Instruction No. 1/88 further
provides that duplicate sample of seized
narcotic drugs and psychotropic substances
must be preserved and kept safely in the
custody of Investigating Officer along with
the case property. Para 2.9 of the Standing
Instruction No. 1/89 provides that the
sample in duplicate shall be kept in heatsealed plastic bags. The duplicate envelope
containing the sample is required to have a
reference of the test memo as well as are
required to be legible. However, in this
case, samples have not been sent within 72
hours from the date of seizure. There is no
evidence led by the prosecution as to on
which date and time, the recovered
contraband was deposited in the Malkhana
although in the statement of P.W.1-Janak
Singh,
it
has
come
that
recovered
contraband was deposited in the Malkhana,
however, time and date on which the
alleged contraband was deposited in the
Malkhana, has not been disclosed by the
prosecution. The test sample has not been
produced, which is mandatory requirement
under para 1.13 of the Standing Instruction
No. 1/88. The Malkhana register has not
been produced before the Court to show
when maal (opium) was deposited in the
Malkhana. Clause 1.13 of the Standing
Instruction No. 1/88 provides mode and
time limit for discharge of the sample of the
laboratory and it provides that sample
should be dispatched to the laboratory
within 72 hours. The relevant para 1.13 is
extracted below:-
74 INDIAN LAW REPORTS ALLAHABAD SERIES

"13. Mode and time limit for
dispatch of sample to Laboratory:- The
samples should be sent either by insured
post or through special messenger duly
authorized for the purpose. Dispatch of
samples by registered post or ordinary mail
should not be resorted to. Samples must be
dispatched to the Laboratory within 72
hours of seizure to avoid any legal
objection."

(26) Taking note of the serious
infirmity in not following the Standing
Instructions, Hon'ble Supreme Court in
Union of India Vs. Bal Mukund and
others : 2009 (12) SCC 161 has held in
para 36 as under :-

"36. There is another aspect of
the matter which cannot also be lost sight
of. Standing Instruction 1/88, which had
been issued under the Act, lays down the
procedure for taking samples. The High
Court has noticed that PW 7 had taken
samples of 25 gm each from all the five
bags and then mixed them and sent to the
laboratory. There is nothing to show that
adequate quantity from each bag had been
taken. It was a requirement in law."

(27) Hon'ble Supreme Court in the
aforesaid case has held that compliance of
Standing Instruction is a requirement in law
and non-compliance of the said Standing
Instructions causes serious doubt in the
prosecution case. The link evidence for
want of production of the Malkhana
register, the sample seals and date of the
said sample deposited in the Malkhana is
incomplete. Malkhana register has not
been produced. The original seal, which
was used for sealing at the place of
seizure, has not been deposited in the
Malkhana nor has been given in the
custody of anyone.

(28) Taking into of the importance of
the link evidence, Hon'ble Supreme Court
in the case of Valsala Vs. State of Kerala :
AIR 1994 S.C. 117 has held in para-4 as
under :-

"4. We have seen the report of the
Chemical Examiner and there no doubt it is
mentioned that one sealed parcel was
received containing a powder and it was
analysed to be Brown Sugar. But from the
records it is clear and it is also noted by
both the courts below that the seized article
was produced in the court only on 14.1.88
i.e. after a period of more than three
months
and
there
is
no
evidence
whatsoever at all to show with whom the
seized article was lying and even assuming
that it was in the custody of P.W.6,the
Officer-in-charge of the Police Station who
seized it, there is again nothing to show
whether it was sealed and kept there. The
learned Counsel for the State no doubt
argued that the provisions of Section 55 of
the Act are not mandatory but only
directory. We need not go into this legal
question in this case. Suffice it to say that
the article seized appears to have been not
kept in proper custody and proper form so
that the court can be sure that what was
seized only was sent to the Chemical
Examiner. There is a big gap and an
important missing link. In the mahazar
Ex.P.2 which is immediately said to have
been prepared, there is nothing mentioned
as to under whose custody it was kept after
seizure. Unfortunately for the prosecution
even P.W.6 does not say that he continued
to keep it in his custody under seal till it
was produced in the court on 14.1.88. The
evidence given by P.W.6 Police SubInspector, who seized the article is
absolutely silent as to what he did with the
seized article till it was produced in the
court. As a matter of fact he did not
8 All. Smt. Shraswati Vs. State of U.P.
75
produce it in the court. P.W.3, A.S.I. is
supposed to have produced the same in the
court. But P.W.3 does not say anything
about this. It is only P.W.7. the Circle
Inspector who comes into the picture at a
later date, who admitted in the crossexamination that the seized article was sent
by P.W.3 (A.S.I.) to the court and P.W.7 in
his cross-examination further admitted that
he did not even see if the recovered
material object was sealed but still he
claims that he made the necessary
application for sending the material object
for chemical examination and it is only
through
P.W.7
that
the
Chemical
Examiner's Report is marked. P.W.7 further
admitted that he did not even know when it
reached the court We are constrained to say
that the investigation in this case has been
perfunctory and on important aspects the
evidence of the concerned officers is highly
discrepant and unconvincing and does not
throw much light. Therefore the evidence
adduced is wholly insufficient to conclude
that what was seized from the appellant
alone was sent to the Chemical Examiner.
Though this is purely a question of fact but
this is an important link. Both the courts
below have not examined this aspect in a
proper perspective. No doubt the trafficking
in narcotic drugs is a menace to the society
but in the absence of satisfactory proof, the
courts can not convict."

(29) In the case of State of
Rajasthan Vs. Gurmail Singh : 2005 (1)
JIC 844 (SC) upheld the acquittal order of
th"3. We have perused the judgment of the
High Court. Apart from other reasons
recorded by the High Court, we find that
the
link
evidence
adduced
by
the
prosecution was not at all satisfactory. In
the first instance, though the seized articles
are said to have been kept in the malkhana
on 20th May, 1995, the Malkhana register
was not produced to prove that it was so
kept in the malkhana till it was taken over
by PW-6 on June 5, 1995. We further find
that no sample of the seal was sent along
with the sample to Excise Laboratory,
Jodhpur for the purpose of comparing with
the seal appearing on the sample bottles.
Therefore, there is no evidence to prove
satisfactorily that the seals found were in
fact the same seals as were put on the
sample bottles immediately after seizure of
the contraband. These loopholes in the
prosecution case have led the High Court
to acquit the respondent."e High Court as
malkhana register was not produced by the
prosecution to prove its case along with
sample to the excise laboratory. Relevant
para 3 of the said judgment is extracted
below:-

"3. We have perused the judgment
of the High Court. Apart from other
reasons recorded by the High Court, we
find that the link evidence adduced by the
prosecution was not at all satisfactory. In
the first instance, though the seized articles
are said to have been kept in the malkhana
on 20th May, 1995, the Malkhana register
was not produced to prove that it was so
kept in the malkhana till it was taken over
by PW-6 on June 5, 1995. We further find
that no sample of the seal was sent along
with the sample to Excise Laboratory,
Jodhpur for the purpose of comparing with
the seal appearing on the sample bottles.
Therefore, there is no evidence to prove
satisfactorily that the seals found were in
fact the same seals as were put on the
sample bottles immediately after seizure of
the contraband. These loopholes in the
prosecution case have led the High Court
to acquit the respondent."

(30) In view of the discussion made
hereinabove and the statement of P.Ws.1, 2
76 INDIAN LAW REPORTS ALLAHABAD SERIES
and 3, it is evident that there is definite
non-compliance of Section 50 of NDPS
Act, which are mandatory, coupled with the
fact that the prosecution has not assigned
any reason for not producing the other
members of the raiding team as the
prosecution witness.

(31) There is also non-compliance of
Section 57 NDPS Act and Standing
Instructions No. 1/88 and 1/89, which have
been held to be requirement in law by the
Hon'ble Supreme Court in the case of Bal
Mukund (supra). The link evidence is not
complete as malkhana register has not been
produced. The prosecution has miserably
failed to prove its case beyond reasonable
doubt against the appellant. There is no
independent eye-witness to the alleged
recovery.

(32) Admittedly, the appellant prior to
her search has not been produced before the
Gazetted Officer or the Magistrate, nor any
effort has been made by P.W.1 and P.W.2 to
produce the appellant before any Gazetted
Officer or the Magistrate as required under
Section 50 of NDPS Act and as has been
held by the Hon'ble Supreme Court in the
case of Vijaysinh Chandubha Jadeja
(supra). The manner in which the appellant
has been searched, is doubtful.

(33)

Considering
the
severe
punishment provided in the NDPS case, the
prosecuting agency has produced only two
witnesses of fact despite the fact that as per
the case of the prosecution itself, apart
from P.W.1 and P.W.2, other witnesses of
fact were also present at the place of
occurrence and the prosecution has failed
to give any germane reason or justification
to not call other witnesses in the witness
box during the trial.

(34) The entire prosecution case is
based on the sole testimony of PW-1 and
PW-2. The seal, which was used for sealing
the samples of contraband substance, has
not
been
sent
to
Forensic
Science
Laboratory rather it seems that the same
was kept by PW-1 himself.