Smt. Kamla Bai vs State Of U.P.
2015 Latest Caselaw 4264 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 14.10.2015
 
Delivered on 19.11.2015
 
Court No. - 36
 

 
Case :- CRIMINAL APPEAL No. - 185 of 2009
 

 
Appellant :- Smt. Kamla Bai
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Pramod Kumar Sharma,Rakesh Kumar Pandey
 
Counsel for Respondent :- Govt. Advocate
 
		Connected with
 
Case :- CRIMINAL APPEAL No. - 186 of 2009
 

 
Appellant :- Smt. Banasi Bai
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Pramod Kumar Sharma,Rakesh Kumar Pandey
 
Counsel for Respondent :- Govt. Advocate
 
		Connected with
 
Case :- CRIMINAL APPEAL No. - 187 of 2009
 

 
Appellant :- Smt. Shanti Bai
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Pramod Kumar Sharma,Rakesh Kumar Pandey
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

1. The present criminal appeals have been preferred against the judgment and order dated 6.12.2008 passed by Additional Sessions Judge, Court No.3, Jhansi in Special Case No.68 of 1998, Case Crime No.632 of 1998, Special Case No.67 of 1998, Case Crime No.631 of 1998 and Special Case No.66 of 1998, Case Crime No.630 of 1998, under Section 8/20 N.D.P.S. Act, Police Station Nawabad, District Jhansi, convicting and sentencing the appellants for 12 years R.I. with fine of Rs.1,00,000/- each for the offence under Section 8/18(B) N.D.P.S. Act, in default of payment of fine, six months additional rigorous imprisonment.

2. Since all the appeals arise out of a common judgment and order passed by the trial Court, hence, all the three criminal appeals are being decided by this common judgment.

3. The prosecution case in brief is that an FIR was lodged by the informant-Radhey Muni Yadav, Sub Inspector, Police Station Nawabad, District Jhansi on 30.4.1998 stating therein that when he was posted at the police station Nawabad, he received an information on telephone at 12.30 a.m. in the night from Constable Muin Ullah and Constable Jai Ram Singh who were on picket duty in the night at the said police station, who informed him that one man and three women after having alighted from a Roadways Bus are sitting in Musafirkhana in the dark and further an information was also received from an informer that the said persons are indulged in illegal business of opium. On the interrogation made by the said Constables of the said four persons,they feared and were giving some allurement to the said police personnel for letting them to go but the said two Constables had detained the said four persons. On receiving the said information, the informant Radhey Muni Yadav, Sub Inspector, along with Constable Gaya Prasad reached at the bus stand and saw that Constable Muin Ullah and Constable Jai Ram Singh had detained one male person and three female. Thereafter the informant interrogated them and one of the woman disclosed her name as 'Shanti Bai', the second one disclosed her name as 'Banasi Bai' and third one disclosed her name as 'Kamla Bai' and male person disclosed his name as Ram Kishan. All the four accused persons stated that they are indulged in the business of Opium and they are in possession of the same.

4. In order to make a search of the said four accused persons, an information was given to them by the informant that whether they would like to give their search before the police or any Gazetted Officer or the Magistrate, on which all the four persons stated to the informant that he may do as he thinks fit. The informant realizing that the place of occurrence is a City area and the Magistrate can be made available and the said persons were indulged in the illegal business of Opium, hence, he ensured that their search may be made before the City Magistrate, for which he sent an information for requiring a lady Constable or Home Guard to the concerned police station and for a City Magistrate. At about 1.45 a.m. in the night, Sri Gopal Chand Pandey, City Magistrate had arrived at the place of occurrence and lady Home Guard had also arrived. Thereafter, Sri Gopal Chand Pandey, City Magistrate, informant and other police personnel also obtained the presence of independent witness, namely, Anis and Sunil Kumar and in their presence all the four accused persons were interrogated by the police, but on the interrogation the accused Ram Kishan informed that one Madan Lal who is resident of Rajasthan is indulged in illegal business of Opium and they used to bring the Opium from the said person and delivered the same to the persons as instructed by Madan Lal, for which the each of the accused lady was given Rs.1000/- and accused Ram Kishan used to get Rs.5000/-. The said accused Ram Kishan further informed the police that they were taking the said Opium to one Ramesh,resident of Banda. He further told that he had also delivered the Opium to many other persons. Thereafter the police personnels in the presence of the City Magistrate and the witnesses made a search from the accused persons and from the possession of accused Ram Kishan a Raxine bag was recovered in which 3 Kg. 300 Gms. opium was recovered which was kept in polythene. On the search being made of the three ladies, from the accused Shanti Bai 3 Kg. 500 Gms., from the accused Banasi Bai 3 Kg. and from the accused Kamla Bai 4 Kg. 500 Gms. Opium was recovered which was tied by them around their waist in a Raxine bag and when they were asked whether they have any license for possessing the same, they informed that they had no license for it. The police after disclosing the offence to the said accused persons took them in their custody. The contraband article which was recovered, was also taken into custody from the said accused and further a sample of ½ Kg. each of Opium was taken by the police at the place of occurrence and all the four samples were taken in a polythene bag separately which were sealed.

5. On the basis of the said fard recovery prepared by the informant, a case was registered against the four accused persons for the offence under Section 8/20 of N.D.P.S. Act as Case Crime No. 630 of 1998, 631 of 1998 and 632 of 1998, police station Nawada, District Jhansil. The investigation was carried out and charge sheet was submitted against all the four accused persons. On the basis of the charge sheet, cognizance was taken by the Court concerned and further charges were framed against the four accused persons for the offence under Section 8/18 of N.D.P.S. Act. The accused denied the said charges and claimed their trial.

6. As all the three accused persons were arrested and recovery was made simultaneously. Hence, on 6.2.1999 an order was passed in Special S.T. No.66 of 1998 clubbing all the three trials and they were tried together by the trial Court.

7. The prosecution in support of its case has examined Radhey Muni Yadav, Sub Inspector as PW1, Constable Indrapal Gupta as PW2, Constable Brij Kishor Dixit as PW3, Gopal Chand Pandey as PW4 and Roshan Lal as PW5.

8. The documentary evidence produced by the prosecution are fard recovery memo Ex. Ka-1, sample taken for chemical analysis Ex. Ka-2, Ka-3, Ka-4, information about weeding out of the G.D. Ex. Ka-5, Chick FIR Ex. Ka.7, Ka.8 & Ka 9, report of Vidhi Vigyan Prayogshala Ex. Ka.30 A, 35A and 36 A, charge sheet filed against Shanti Bai,Banasi and Kamla Bai and various other documents.

9. PW1-Radhey Muni Yadav deposed before the trial Court and supported the prosecution case as alleged in the FIR and proved the fard recovery memo Ex.Ka.1. He further deposed that he had brought the accused along with the recovered contraband article at the police station and lodged the FIR against them and further the recovered articles were kept in the police Malkhana. He further proved the recovered Opium bundle, polythene, Opium and sample of Opium Ex. Ka. 1 to 18.

10. PW2-Constable Indrapal Gupta deposed before the trial Court that he was posted as Constable at the police station Nawabad, District Mainpuri and the sample of contraband article which were recovered, were taken by him from the Malkhana of the concerned police station on 20.8.1998 in a sealed condition and handed over the same to Vidhi Vigyan Prayogshala on 21.8.1998. He further proved the sample taken for chemical examination Ex. Ka-2, 3 & 4 respectively. He further stated that in the year 1998, the G.D. of the concerned police station has been weeded out, for which he also proved the Certificate Ex. Ka-5.

11. PW3- Birj Kishore Dixit has deposed before the trial Court that when he was posted as Constable Moharrir at the police station Nawabad on the date and time of the incident, the informant Radhey Muni Yadav had brought the said four accused persons along with four bundles of contraband article in a sealed condition and on the written information given by Radhey Muni, the Chick FIR was registered, which was marked as Ex. Ka-6 and an endorsement of the same was also mentioned in the G.D. Of the concerned police station and a carbon copy of which was proved by him as Ex. Ka-7. He also stated that G.D. of the year 1998 of the concerned police station Nawabad has been weeded out and a certificate to that effect has been proved by him as Ex. Ka-5.

12. PW4 Gopal Singh Pandey has stated before the trial Court that in April, 1998 he was posted as City Magistrate in Jhansi and in the night of 29/30.4.1998 at about 1.15 A.M. in the night, Constable Gaya Prasad had come to him and informed him about some miscreants at the bus stand and on the said information at about 1.40 A.M. in the night he reached the bus stand of Jhansi at the Musafirkhana of the said bus stand. He further stated that at the time of incident, there were two independent witnesses and one lady Home Guard, namely, Sheela were also present. He has stated that in his presence informant Radhey Muni Yadav had made a search of accused Ram Kishan and lady Home Guard had made search of three ladies co-accused, namely, Shanti Devi, Banasi Devi and Kamla Devi and from their possession 3 Kg. 500 Gms., 3 Kg. and 4 Kg. 500 Gms. Opium respectively was recovered. The sample of the contraband article was also taken and were sealed by the informant. He further deposed before the trial Court that fard recovery memo was prepared by I.O. in the torch light and after it was noted down, the same was read out to him on which he has made his signature. He has proved the fard recovery memo as Ex. Ka-1.

13. PW5- Roshan Lal, Sub Inspector, has stated before the trial Court that on 30.4.1998 he was posted at police station Nawabad and was entrusted with the investigation of the said case and he has recorded the statement of the witnesses, prepared the site plan and proved the same as Ex. Ka- 7 and Ka-9 respectively and submitted charge sheet against all the accused.

14. The statements of the accused were recorded under Section 313 Cr.P.C. and they have denied the prosecution case and submitted that the witnesses have wrongly deposed against them and stated that they are innocent.

15. It has been argued by the learned counsel for the appellants that the offer to make search either before any Gazetted Officer or before the Magistrate was not given to the appellants and as such offer is incomplete. Hence,the mandatory provisions of Section 50 of N.D.P.S. Act has not been complied with. Therefore, the judgment and order passed by the trial Court convicting and sentencing the appellants is liable to be set aside. It was next argued that the contraband article is said to have been recovered on 30.4.1998 but the same was sent to Forensic Science Laboratory, Agra after 3-1/2 months as it was received there on 21.8.1998. and no explanation has been given for such inordinate delay for sending the same by the prosecution, therefore, the possibility of tempering with sample cannot be ruled out. He urged that there is no evidence to show as to who had kept the case property in his safe custody for about four months and why the same was not deposited in the Mal Khana of the concerned police station. He further argued that mandatory provision of Section 55 of N.D.P.S. Act have also not followed and there is no evidence to show that who was the person deputed to have the seized article in his safe custody and for the purpose to affix his seal to such article or to take sample from them.

16. He argued that it is a well settled law that partial offer of search is a non-compliance of Section 50 of N.D.P.S. Act, hence, conviction of the appellants is not sustainable in the eyes of law.

17. He next argued that no independent witness has been produced in the evidence to support of the prosecution case, which itself creates doubt about the prosecution story. He argued that the appellants are the ladies and they have no criminal history and they have been falsely implicated by the police in the present case who challaned them in an illegal manner.

18. Learned AGA on the other hand, has vehemently argued that the contraband articles which have been recovered from the possession of the three appellants are above the commercial quantity and mandatory provision of Section 50 and 55 of N.D.P.S. Act has been complied with. The trial court has rightly convicted and sentenced the appellants.

19. Heard Sri Rakesh Kumar Pandey, learned counsel for the appellants, Sri R.K.Maurya, learned AGA for the State.

20. Considered the submissions advanced by the learned counsel for the parties and perused the record.

21 It appears from the evidence produced by the prosecution that the three ladies who are the appellants were arrested by the police along with one Ram Kishan with the contraband article from the Musafirkhana of Roadways Bus Stand, Jhansi in the night and police party after receiving an information and suspecting that the appellants were indulged in illegal trading of Opium had detained them and PW1-Radhey Muni Yadav, Sub Inspector, on receiving the said information from the police constables who were on picket duty at the said bus stand had reached at the place of occurrence and he suspected the appellants possessing some contraband article, he called for a lady Constable or the Home Guard and further the Magistrate before whom a search of the appellants could be made.

22. It further transpires from the evidence of PW1, namely, Radhey Muni Yadav that he also informed the appellants about their right of being searched before the Gazetted Officer or Magistrate and he also informed the police station through Constable Gaya Prasad who had accompanied him at the place of occurrence and lady Home Guard and City Magistrate Gopal Singh had also arrived at the place of occurrence and before him a search was made by the lady Home Guard of the appellants who were carrying the contraband article,i.e., Opium around their waist in a raxine bag and sample of the said contraband article was also taken by the police and memo of which was also prepared at the spot which was signed by the City Magistrate who has proved the same. As per the report of Chemical Analyst, the contraband article which were seized, was Opium.

23. It also reveals from the evidence of PW 3 Brij Kishore Dixit who was posted as Constable Moharrir at the concerned police station that PW1-Radhey Muni Yadav had handed over the four bundles of contraband article along with seized sample to him on the basis of which he lodged the Chick FIR and made endorsement about the same in the G.D. of the concerned police station. Moreover, PW2- Indra Prakash Gupta had stated that he had taken the sample from the Mal Khana of the police station on 20.8.1998 and had delivered the same at Vidhi Vigyan Prayogshala, Agra on 21.8.1998 in a sealed condition along with its memo Ex. Ka.2 to Ka-4 respectively. Hence, the contention raised by the learned counsel for the appellants that the mandatory provision of Section 50 and 55 of the N.D.P.S. Act has not been complied with is wholly unfounded.

24. Moreover, from the statements of the appellants recorded under Section 313 Cr.P.C., it is apparent that they have not been able to establish before the trial Court the reason for their false implication in the present case and they have only stated that witnesses have falsely deposed against them. There is no material on record to show that the police has illegally challaned the appellants and falsely implicated them in the present case. The appellants appears to be the carrier of the contraband article and they used to deliver the same to the person concerned on the instruction of their Master.

25. Thus, from the evidence led by the prosecution, the prosecution has proved its case beyond reasonable doubts against the appellants.

26. In view of the foregoing discussions, the conviction and sentence of the appellants by the trial Court is hereby upheld. Hence, no interference is required by this Court for quashing of the impugned judgment and order dated 6.12.2008 passed the by the trial Court.

27. The appellants are stated to be in jail as on date, hence they shall serve out the sentence as awarded by the trial Court.

28. The appeals lack merit and are accordingly, dismissed.

Order Date :-19.11.2015

NS