Santosh Kumar Gupta & Others vs State Of U.P.
2011 Latest Caselaw 4581 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

	                                                                                 		Reserved
 
A.F.R.
 

 

 
CRIMINAL APPEAL NO. 196 OF 2008
 
Santosh Kumar Gupta and others...  Vs. ...Union of India
 
Connected with
 
CRIMINAL APPEAL NO. 1661 OF 2008
 
Smt. Kiran Devi @ Bua and another... Vs. ..Union of India
 
                           
 

 
Hon'ble Vinod Prasad,J.

I have heard learned counsel for appellant Santosh Kumar Gupta in Criminal Appeal No. 196 of 2008, Santosh Kumar Gupta and others versus Union of India and another, and on the bail prayer of Smt. Manju @ Dulari Devi in connected Criminal Appeal No. 1661 of 2008, Smt. Kiran devi @ Bua and another versus Union of India and another. Both these appellants have been convicted for offences U/Ss 20,23 and 29 NDPS Act, by Additional Sessions Judge, F.T.C. Court No. 4, Fatehpur in S.T. No. 477 of 2006, Union of India through Intelligence Officer, Narcotic Control Bureau., Varanasi Vs. Santosh Kumar Gupta and others vide impugned judgment and order dated 31.11.2007 and consequently bail prayers of both the aforesaid appellants in the two connected appeals are being considered by this common order.

Unfolded prosecution allegations, as are contained in the complaint filed by PW2, N.N. Upadhyay, Intelligence Officer, N.C.B., Varanasi and later on testified by him as well as P.W. 1, Sri S.N. Bist during trial are that on a secret information received by them on 23.3.2006 at 3 a.m. in N.C.B. Camp Office, Bhujaini, Kanpur informing them that appellant Santosh Kumar Gupta resident of Dev Nagar, Kanpur is importing charas( cannabis) in a huge quantity in a Bolero Car U.P. 78 AC-0111, that these officers along with other associates of NCB and local police officers laid a trap on Hussain Ganj Crossing, G.T. Road, Fatehpur where at 8.30 a.m. they apprehended a Mahindra Bolero Car having aforesaid registration number coming from Allahabad and proceeding towards Kanpur. The aforesaid Bolero Car was stopped and after disclosing their identities and observing statutory formalities U/S 50 NDPS Act, officers of N.C.B. conducted personal search of five passengers namely Girijesh @ Sajjan Shukla, Santosh Kumar Gupta, Surya Kant Pandey, Kiran Devi @ Bua and Manju @ Dulari Devi but nothing incriminating was found from their personal search. They subsequently searched the transport vehicle and found a built cavity between rear and middle seats and on checking it, they found brick shaped cannabis (charas) inside it packed in polythene. Testing it from their field trap test kit, recovered contraband was confirmed to be charas( cannabis) weighing 100 kgs. From total seized narcotic contraband three separate packets were prepared, two packets weighing 40 kg each and one packet of 20 kg. From 40 kgs packets 2-2 samples of 24 grams each were prepared and from the packet of 20 kg, one sample of the said quantity( 24 grams) was drawn. Accused persons were arrested same day 23.3.2006 and their arrest memo were prepared. They were produced before the magistrate on the following day 24.3.2006 and were remanded to judicial custody. Seized contraband was kept in NCB godown and compliance of section 57 thereafter was made. Drawn samples were dispatched to Government Opium and Alkaloid Works, Ghazipur for testing and it's report confirmed seized contraband to be cannabis. Aforementioned search and seizure lasted from 8.45 a.m. till 2 p.m. and during course of it statements of five accused u/s 67 of N.D.P.S. Act were also recorded where the accused persons are alleged to have made confessional statements.

On the preceding factual matrix complainant N.N. Upadhyay, PW2, lodged a complaint on behalf of Union of India against accused persons resulting in registration of S.T. No. 477 of 2006,Union Of India versus Santosh Kumar Gupta and others, in which trial, Additional Sessions Judge, F.T.C, Court No. 4, Fatehpur found the accused guilty and, therefore, convicted them as aforementioned vide impugned judgement and order of conviction dated 31.11.2007.

Appellants have challenged their aforesaid convictions and sentences in the aforesaid two appeals, which have been admitted and connected and now bail prayer of the two appellants Santosh Kumar Gupta and Smt. Manju @ Dulari Devi are being pressed and considered by this order.

Smt. Veena Mishra was heard in support of bail prayer of Smt. Manju @ Dulari Devi and Rishabh Kumar, Advocate was heard in support of bail prayer of Santosh Kumar Gupta. Sri Sanjay Kumar Singh, learned counsel for NCB, was heard for the complainant respondent in opposition.

It is submitted by both the appellants counsel that the two appellants, Santosh Kumar Gupta and Smt. Manju @ Dulari Devi were neither the owner nor the driver of the involved vehicle and no credible and convincing evidence exist on record to conclude that they were in actual conscious possession of the recovered narcotic contraband. Section 57 of the N.D.P.S. Act has been violated and, consequently appellant's conviction is unsustainable. Additionally it was submitted that recovered contraband was never deposited with the police of the concerned police station and was illegally retained by the Officers of N.C.B., Varanasi only to falsely implicate the appellants. This, they contend was in the breach of provisions of N.D.P.S. Act. Learned counsels further submitted that the samples sent to Government Opium And alkaloid Factory, Ghazipur for testing were tampered with and were not of that contraband which was alleged to have been recovered from the possession of the appellants. Quantity of samples differed and this was possible only when it were tampered with. According to complaint case all the samples weighed only 24 grams but when the same were opened in the laboratory sample P 1 S 1 was found to be 27.570 grams, P 2 S 1 was found to be 29.450 grams and sample P 3 S 1 was found to be 29.700 grams. To cement harangued submission photo copy of the report from Government Opium and Alkaloid Works, Ghazipur dated 8.4.2006 was produced for court's perusal. Corresponding contention is that entire seizure is fake, planted, false and cooked up. Next it was submitted that according to the complainant's version, two independent witnesses Mohan Lal and Girish were attached with the said recovery but none of those two public persons were examined during the trial and even the summons sent to them were returned back un-served with a note that those two persons do not reside on the said address. It is, therefore, submitted that in fact the two independent witnesses Mohan Lal and Girish were never join with the alleged recovery by the Officers of N.C.B. and they were fictitious persons with fictitious addresses. In support of this contention, learned counsels relied upon internal page 34 of the impugned judgment vide paragraph 52. It is further submitted that no site plan of the spot/scene of incident was sketched nor was exhibited as entire seizure is planted and in support of the said contention, learned counsels relied upon paragraph 54 of the impugned judgment at page 35. It is also submitted that the vehicle in question was never produced before the court for its inspection to check as to whether there was any cavity in between the rear and middle seats or not and whether such a cavity could contained such huge quantity of charas or not? It is further submitted that the entire contraband was never sent for chemical analysis and, therefore, it cannot be said with exactitude as to what percentage of narcotic was present in the total quantity of seized contraband and, therefore, conviction of the appellants taking the recovered contraband to be more than commercial quantity is illegal. It is further submitted that Section 57 of the N.D.P.S. Act was not complied with as no report of the arrest and seizure was made to the superior officers within 48 hours of its recovery. Learned counsels relied upon following decisions to support his submissions: Raj Kumar Agarwal Vs. Union of India and another: 1990 (27) ACC 443; Mohd. Islam @ Farooq Vs. Union of India: 2001 (43) ACC 581; Noor Aga Vs. State of Punjab and another: (2008) 16 SCC 417; Union of India Vs. Bal Mukund and others: (2009) 12 SCC 161; S.G. Natham Vs. State through Inspector of Police Tamilnadu: 2004 CrLJ 3834; Union of India Vs. Munna and another: 2004 CrLJ 4183 and Hasan Ali Vs. State: 2010 (71) ACC 853.

Besides aforementioned contentions, it was submitted that statements of both the appellants alleged to have been recorded under Section 67 of NDPS Act are cooked up statements, which has been specifically denied during trial by both the appellants. It is further submitted that a bare perusal from naked eyes of the original statements will establish that the same was taken down in different handwriting with different ink with different writing qualities, which unerringly indicates that the entire exercise by NCB Officers was tainted with malafides to falsely implicate the appellants. Learned counsel appearing for the appellant Santosh Kumar Gupta, relied upon middle and last pages of the aforesaid written statements, photocopies of which were produced before the Court during course of hearing which has not been disputed by Sri S.K. Singh, learned counsel for Narcotics Control Bureau.

It was next submitted that maximum sentence imposed upon the two appellants is ten years RI and they had remained in jail from the date of their arrest i.e. 23.3.2006 and, therefore, as on date, they had already served more than five and half years of imprisonment which is more than half of the sentence imposed upon them. It is submitted that including remission, both the appellants have served near about quarter to six years of imprisonment and there is scanty chance of their appeals being heard finally. Learned counsels next submitted that both the appellants are ready to give an undertaking that they will not abscond nor will in any way effect hearing of the appeal. It is additionally submitted that the appellants have no criminal history and entire allegations of their being involved in import and export of Narcotics Drugs is purely conjectural and hypothetical. It is, therefore, submitted that both the appellants aforesaid be released on bail.

Smt. Veena Mishra learned counsel additionally submitted that the appellant Smt. Manju @ Dulari Devi is a lady and after incarceration of more than half of her sentence, she should be released on bail as chances of appeal being heard in near future is extremely remote especially when this Court is saddled with enormous load of work with half of strength of Hon'ble Judges.

Sri S.K. Singh, learned counsel for NCB, has filed counter affidavit on behalf of Union of India/ NCB in both appeals. Per contra, he submitted that there was no reason for officers of NCB to falsely implicate the appellants. 100 kg contraband cannabis were recovered from the vehicle in which these two appellants were travelling and according to the complainant's version, both the appellants were directly and substantially involved in the offence. Learned counsel further submitted that Section 57 of NDPS Act has been complied with and, therefore, he contended that the bail prayer of the both appellants be rejected. Learned counsel relied upon Hon'ble Apex Court decision in the case of Iqbal Musa Patel Vs. State of Gujarat (2011) 2 SCC 198, Mahesh Vs. Union of India and another: 1988 ALJ 411.

I have considered arguments raised by both the sides and have perused the impugned judgment of conviction and sentence and statements under Section 67 NDPS Act of the two appellants alleged to have been recorded by the officer of NCB, Varanasi.

From critical analysis for the purposes of bail as an interim measure following facts are unearthed :-

(a) Two appellants have been sentenced maximum period of sentence 10 years RI and they had remained in jail for more than five and half years;

(b) One of the appellants is a lady;

(c) After recovery, five samples of 24 grams were prepared but when sample packets were opened in the testing laboratory at Ghazipur, they were found to be of different quantities containing different measurements of 27.570 gms, 29.450 gms and 29.700 gms.

(d) It is not in dispute that the searching and raiding party had balance, weights and measures along with them with which they had weighed seized narcotics, division packets and sample packets.

(e) it is not in dispute that two independent witnesses Mohan Lal and Girish Kumar were joined with the recovery but they were not produced during the trial to lend credence to the alleged recovery made by officers of NCB.

(f) It is not in dispute that Mohan Lal and Girish Kumar could not be produced before the court as addresses disclosed by them indicated that those addresses were false as has been mentioned by the trial judge in paragraph no.52 of the impugned judgment;

(g) It is also not in dispute that no site plan of the spot from where the alleged recovery was made, was sketched by officers of NCB, Varanasi as is mentioned in paragraph 54 of the impugned judgment;

(h) It is also not in dispute that the alleged Azim Mistri who is alleged to have carpented the cavity in the transport vehicle Bolero Jeep, though was interrogated and his written statement was also got prepared but he was not examined during trial to support prosecution version of making such a cavity;

(i) It is also not in dispute that the vehicle in question was also not produced before the court for its inspection for determining as to whether there was any cavity in it or not and if there was one whether it could have contained 100 kg. narcotics or not?

(j) It is also not in dispute that the entire quantity of the seized contraband was not sent for analysis to Government Opium and Alkaloid Works, Ghazipur, for determining exact quantity of percentage of narcotics in the entire seized contraband;

(k) It is also not in dispute that statements under section 67 of NDPS Act were recorded in different hand-writings having different textures and at least some of the portions have been subsequently added in statement of appellant Santosh Kumar Gupta;

(l) It is also not disputed that likely hood of hearing of the appeal finally will take some time and in near future such a possibility is remote;

(J) From further analysis, it is revealed from the impugned judgment that from personal search of the two appellants, no narcotics contraband was recovered nor search of their house brought any thing incriminating;

(K) That vehicle belonged to one Surya Kant Pandey which was driven by another co-accused Girijesh Shukal @ Sajjan Shukla. (L) That after alleged seizure, the recovered narcotics were not deposited with the police of the concerned police station and was retained illegally by officers of NCB. In this respect, paragraph nos. 101 and 102 of Hon'ble Apex Court decision in the case of Noor Aga (Supra), are quoted below:-

"101. Several other lacunae in the prosecution case had been brought to our notice. The samples had been kept at the airport for a period of three days. They were not deposited at the malkhana. It was obligatory on the part of the Customs Department to keep the same in safe custody. Why such precautions were not taken is beyond anybody's comprehension.

102. The High Court, however, opined that the physical evidence was in safe custody. Such an inference was drawn on the basis that the seals were intact but what was not noticed by the High Court is that there are gaping flaws in the treatment, disposal and production of the physical evidence and the conclusion that the same was in safe custody required thorough evidence on the part of the prosecution which suggests that the sanctity of the physical evidence was not faulted. It was not done in the present case."

(M) Further, discrepancy in the weights of samples, as pointed out above, is also of vital importance. It was not regular police who had conducted the search. Seizure party were persons of NCB who according to their case had definite information of import of narcotics contraband. They way laid to apprehend the vehicle. They carried with them weights, measures and balance with them for the purposes of weighing with precision any seized contraband, as they were conscious that they had to weigh the entire quantity and the samples to be drawn by them. They also weighed two packets of 40 kgs and one of 20 kg. They could weigh even the samples of 24 grams. In such a view, there was no reason for discrepancy being occurred in measurements of samples drawn by them, which was detected in Alkaloid Laboratory, Ghazipur. In this respect, reliance can be placed on paragraph no.98 of the aforesaid decision of Noor Aga (supra) wherein it has been observed by Hon'ble Apex Court as under:-

"We are not oblivious of the fact that a slight difference in the weight of the sample may not be held to be so crucial as to discharged the entire prosecution case as ordinarily an officer in a public place would not be carrying a good scale with him. Here, however, the scenario is different. The place of seizure was an airport. The officers carrying out the search and seizure were from the Customs Department. They must be having good scales with them as a marginal increase or decrease of quantity of imported articles whether contraband or otherwise may make a huge difference under the Customs Act."

Without deliberating over factual aspect further but looking to the period of detention, the maximum sentence imposed upon the appellants and looking to the facts and evidences tendered during trial and also the fact that the appeal filed by both appellants is an arguable appeal which has already been admitted, I consider it appropriate to release both the appellants on bail.

Let appellants namely Santosh Kumar Gupta and Smt. Manju @ Dulari Devi be released on bail on their furnishing a personal bond of Rs. 2 lacs with two solvent sureties each in the like amount to the satisfaction of trial court concerned in S.T. No. 477 of 2006 (Union of India through Intelligence Officer, Narcotic Control Bureau, Varanasi Vs. Santosh Kumar Gupta and others) vide impugned judgment and order dated 31.11.2077 on the conditions (i) that both sureties shall be their family members and /or relatives and (ii) appellants shall intimate their whereabouts to the officers of NCB, Varanasi and they will appears before NCB, Varanasi, on the date to be fixed by them during pendency of this appeal once in two months.

Since I consider that expeditious hearing of this appeal is desirable, I, therefore, expedite hearing of the appeal and direct the office to prepare paper the book and list this appeal for final hearing before the appropriate Bench as soon as paper book is ready.

Dt.13.9.2011

AKG/Rkg/-