Har Mohan vs State Of U.P.
2016 Latest Caselaw 6530 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Reserved On 28.09.2016
 
Delivered On 18.10.2016
 

 
Court No. - 39
 
Case :- CRIMINAL APPEAL No. - 3180 of 2014
 
Appellant :- Har Mohan
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sharad Chandra Singh,Agni Pal Singh,Satish Chandra Singh
 
Counsel for Respondent :- Govt. Advocate
 
With
 
Case :- CRIMINAL APPEAL No. - 5524 of 2015
 

 
Appellant :- Jakir Hushain @ Guddu
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sharad Chandra Singh,Balram Gupta,Manoj Kumar Singh,Satish Chandra Singh
 
Counsel for Respondent :- Govt. Advocate
 
With
 
Case :- CRIMINAL APPEAL No. - 5642 of 2011
 

 
Appellant :- Bhuttan Mahto
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- A.R. Dube,Shobhit Dube
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Abhai Kumar,J.

All the three appeals are directed against the judgment of conviction dated 1.9.2010 passed by Additional Sessions Judge (F.T.C.-1), Kanpur Nagar whereby Session Trial No. 455 of 2008 (State Vs. Harmohan), Session Trial No. 456 of 2008 (State Vs. Jakir Hushain) and Session Trial No. 453 of 2008 (State Vs. Bhuttan Mahato) were decided together and thereby convicting the all the three appellants, under Sections 20B(ii)(c) N.D.P.S. Act arising out of Crime No. 4 of 2008, Crime No. 5 of 2008 and Crime No. 6 of 2008 respectively related to Police Station - Armapur, Kanpur Nagar and accused-appellant - Harmohan was convicted for 18 years rigorous imprisonment with a fine of Rs. 2 lacs and in default of payment of fine to further undergo two years additional imprisonment. Accused-appellant - Jakir Hushain was convicted for 16 years rigorous imprisonment with a fine of Rs. 1.50 lacs and in default of payment of fine to further undergo two years additional imprisonment and appellant - Bhuttan Mahato was convicted for 12 years rigorous imprisonment with a fine of Rs. 1.20 lacs and in default of payment of fine to further undergo two years additional imprisonment.

Brief facts of the case as are as follows:

On 25.1.2008, S.O.G. Incharge - T.B. Singh, S.I. - Rishikant Shukla, S.I. - Sunil Tiwari, S.I. - Deepak Mishra, Constable - Arvind, Constable - Bhaiya Lal alongwith Driver - Bhagwat Prasad Pandey in the Government Jeep under the direction of Senior Superintendent of Police, Kanpur Nagar were patrolling for the security of factories of military area. There they met Station Officer Armapur - Anand Prakash Mishra who was on patrolling in search of suspected persons alongwith other police personnel and when they reached near Armapur Nahar Puliya, they intercepted some men and women and they were arrested at 6.15 P.M. Five men and two women were arrested. It is stated by them that they are having illegal charas and they were given option to be searched before a magistrate or a gazetted officer but all of them stated that they can be searched by them. Then consent letter was signed by them. Passers by were asked to become witness in the matter but none was ready for that. From the bag that was in the right hand of the accused-appellant Harmohan, 9 kg charas was recovered. 6 kg charas was recovered from the possession of accused-appellant Jakir Hushain and from the polythene that was in the hand of accused-appellant Bhuttan Mahato, 2 kg charas was recovered. Recovery was also made from the other persons also those were arrested on the spot. 100 gms of charas each has been taken as sample and all the recovered item as well as sample were sealed on the spot. Recovery memo was ascribed and after that all the arrested persons were taken to the police station and FIR was lodged on the basis of recovery memo. Recovered items were entered in Malkhana. Investigation was initiated and chemical laboratory reports were also achieved and from that it was found that recovered articles were charas and after the completion of investigation charge-sheet was submitted against the appellants. Session trials of all the three appellants were tried together. During trial charges were framed against the appellants and as many as eight witnesses were produced by the prosecution, out of which PW-1 S.I. Anand Prakash Mishra, PW-2 S.I. T.B. Singh were witnesses of facts whereas rest of the witnesses are formal in nature. After the evidence of prosecution, statement under Section 313 Cr.P.C. of the accused persons were taken. Appellant Harmohan produced DW-1 Shiv Prakash Yadav in the defence whereas rest of the appellant did not give any defence except the statement under Section 313 Cr.P.C. wherein false implication has been alleged. Trial Court after hearing the parties came to the conclusion that statements of PW-1 and PW-2 are trustworthy and there is nothing adverse between two statements and PW-1 and PW-2 have proved the case against the appellants.

It is further observed by the trial court that although compliance of Sections 55 and 57 of the N.D.P.S. Act is not being made but compliance of Sections 55 and 57 is not mandatory rather directory and on that basis came to the conclusion that these non-compliances are not fatal in nature. It is further observed by the trial court that entry regarding recovered contraband as well as sample is in the malkhana register and register is being proved by PW-4 Head Constable Sunil Kumar. It is also found by the trial court that there was no occasion for tampering of the sample and prosecution has succeeded in proving that since the entry of the sample in the malkhana and by the time it reached to chemical laboratory it was not being tampered.

It is further observed by the trial court that Section 50 of the N.D.P.S. Act is having no application in the matter as recovery has been made not from the personal search of the accused persons. It is further found by the trial court that delay in sending the sample for chemical analysis is also being explained and there was no occasion to disbelieve the prosecution story and accordingly convicted the appellants as stated above.

Aggrieved by that, appellants filed these appeals.

Learned counsel for the appellants did not argue regarding discrepancies in the statements of PW-1 and PW-2 and further oral evidence is also not being seriously challenged by them rather all the arguments of the appellants are based upon legal flaws said to have taken in the matter.

The first argument of the appellants is regarding the compliance of Section 50 of the N.D.P.S. Act. It is submitted by the learned counsel that in the present matter compliance of Section 50 of N.D.P.S. Act is not being made properly and appellants were not apprised of their rights regarding the search to be made before a gazetted officer or a magistrate rather only this much is being said that they can be searched by the gazetted officer or magistrate.

It is further submitted that even in consent letter rights of the appellants were not apprised by the arresting persons and secondly it is submitted that consent letter was jointly taken and right was also apprised jointly which is not the intention of the law rather every arrested person ought to have given a separate appraisal regarding one's right and similarly consent letter ought to have been made separately.

Hon'ble Apex Court in the case of State of Rajasthan Vs. Parmanand, LAWS (SC)-2014-2-71 observed as follows:

"In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parmanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated."

Although the facts of the case in hand are different. In the case before Hon'ble Apex Court, consent letter was only signed by respondent no. 2 Surajmal whereas respondent no. 1 Parmanand has not signed on the consent letter at all.

Learned trial court on the basis of fact that recovery is not being made from the personal search of the appellants held that application of Section 50 of the N.D.P.S. Act is not relevant in the matter. Hon'ble Apex Court in State of Rajasthan Vs. Parmanand (supra) also discussed various laws in this regard and relevant portions are reproduced below:

"In Dilip & Anr. v. State of Madhya Pradesh, on the basis of information, search of the person of the accused was conducted. Nothing was found on their person. But on search of the scooter they were riding, opium contained in plastic bag was recovered. This Court held that provisions of Section 50 might not have been required to be complied with so far as the search of the scooter is concerned, but keeping in view the fact that the person of the accused was also searched, it was obligatory on the part of the officers to comply with the said provisions, which was not done. This Court confirmed the acquittal of the accused.

In Union of India v. Shah Alam, heroin was first recovered from the bags carried by the respondents therein. Thereafter, their personal search was taken but nothing was recovered from their person. It was urged that since personal search did not lead to any recovery, there was no need to comply with the provisions of Section 50 of the NDPS Act. Following Dilip, it was held that since the provisions of Section 50 the NDPS Act were not complied with, the High Court was right in acquitting the respondents on that ground.

Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."

From the observation of Hon'ble Apex Court, it can be said that where personal search is also taken besides the recovery from the bag or other container then application of Section 50 of N.D.P.S. Act is there.

Hon'ble Apex Court in the case of Suresh Vs. State of Madhya Pradesh, LAWS (SC)-2012-11-31, revisited the law propounded by two constitution benches of the apex court in State of Punjab Vs. Baldev Singh, 1999 (6) SCC 172 and Vijay Singh Chandubha Jadeja Vs. State of Gujarat, 2011 (1) SCC 609 and it was found by the Hon'ble Apex Court that law propounded in Joseph Fernandez Vs. State of Goa, 2000 (1) SCC 707 as well as Prabha Shanker Dubey Vs. State of Madhya Pradesh, 2004 (2) SCC 56, are not in consonance with the constitution bench decision in State of Punjab Vs. Baldev Singh (supra) and extracted the relevant portion as follows:-

"Although the Constitution Bench in Baldev Singh case did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act."

It is further observed by the Apex Court as follows:

"Though a portion of the contraband (opium) was recovered from the vehicle for which Section 50 is not applicable, if we exclude the quantity recovered from the vehicle, the remaining would not come within the mischief of ''commercial quantity' for imposition of such conviction and sentence. Taking note of length of period in prison and continuing as on date and in view of non-compliance of sub-section (1) of Section 50 in respect of recovery of contraband from the appellants, we set aside the conviction and sentence imposed on them by the trial Court and confirmed by the High Court."

In view of the observation of the Hon'ble Apex Court, it can very well be said that in case recovery is not made from the personal search and conviction is not based upon personal search and recovery is made from other than personal search, then Section 50 of NDPS Act is having no application.

The case in hand, nothing was recovered from the personal search of the appellants and conviction is also not based upon any personal search and in the circumstances observation of the trial court that application of Section 50 of NDPS Act is not in the present case, was quite correct and no interference in that can be done. Accordingly, it is found that in the present case, application of Section 50 of NDPS Act is not warranted and the right that has been apprised to the appellants was more than enough and if it was said to them they can get their search before a gazetted officer or a magistrate was sufficient. In the circumstances, it cannot be said that due to violation of Section 50 of the NDPS Act, recovery can be said to have been vitiated.

The second contention of the learned counsel for the appellants is regarding the non-compliance of Sections 55 and 57 of the NDPS Act. It is vehemently argued by the learned counsel that learned trial court did observe the non-compliance of Sections 55 and 57 of NDPS Act but did not given the benefit of those lapses and stated that compliance of these sections are only directory and not mandatory, so they will not vitiate the recovery. It is further stated by the learned counsel that the law propounded by Hon'ble Apex Court in the case of Gurbax Singh Vs. State of Haryana, 2001 SCC (Crl) 426 was misinterpreted by the trial court.

So far as observation of non-compliance of Section 55 of the NDPS Act is concerned, it can be said that Section 55 of the NDPS Act is not being complied with but so far as compliance of Section 57 of NDPS Act is concerned the observation of the trial court is not proper in this regard. From the statement of PW-2, it can be inferred that compliance of Section 57 of NDPS Act was made where he has stated in the cross-examination that information to higher officials were given on the same day. This fact is being corroborated by PW-3 Constable Badshah Singh wherein he has stated in the cross-examination that information of the incident was given to higher officials on the same day at 11.05 P.M. through S.R. Distribution. It is further stated by him that this information was sent in a sealed envelope and information was sent through Constable Umesh Singh, so it cannot be said that compliance of Section 57 was not made.

Hon'ble Apex Court in the case of Babubhai Odhavji Patel and others Vs. State of Gujarat, (2005) 8 SCC 725 and this case has also referred by the trial court, has clearly stated that compliance of Sections 52, 55 and 57 of NDPS is not mandatory and has held as follows:

"The learned counsel further contended that the seized articles were not kept in proper custody and that there was violation of Sections 52, 55 and 57 of the NDPS Act. He placed reliance on Valsala v. State of Kerala (1993) 3 Supp. 665. We do not think that there is much force in this contention. This Court in Gurbax Singh v. State of Haryana (2001) 3 SCC 28 held that these provisions are not mandatory provisions and they are only directory. In the present case, we do not find any serious violation of these provisions. The prosecution adduced evidence to prove that these provisions have been substantially complied with and the Sessions Judge discussed these matters in detail and accepted the prosecution case."

In the present case also defence has failed to draw the attention of the court as to what prejudice has been caused by non-compliance of Section 55 of the NDPS Act.

A further contention of the defence can also be taken at this stage which is also relevant for the purpose of Section 55 of the NDPS Act. It is submitted by the learned counsel that malkhana register was not being properly proved before the court and from that it can be inferred that recovered article was not properly entered in the malkhana of Police Station and there was chance of tampering with the recovered article as well as sample. In case it is found that recovered article was properly entered into the malkhana and there is entry regarding this in the malkhana and further entries are also being done in the malkhana register then it can be said that non-compliance of Section 55 of NDPS Act is not fatal.

In the point in issue, statement of PW-4 Sunil Kumar is relevant who has proved malkhana register before the court and also filed copies of the same from the original malkhana register that was before him at that time of giving statement. Photostat copies from register, from Serial no. 2 to 8 were filed by this witness and these were exhibited as Exhibit Ka-5.

From the perusal of Exhibit Ka-5 it can be said that entry regarding recovered article as well as sample in the malkhana register is being made. It is also entered that samples were received at the chemical laboratory on 2.2.2008 and further result of chemical laboratory report is also mentioned in the malkhana register as evident from Exhibit Ka-5.

In view of the above, it can be said that contention of learned counsel for the appellants that malkhana register is not being properly proved by the prosecution, cannot be accepted, although numbering upon the malkhana register was not there but same cannot be said to be fatal as the compliance of Section 55 of NDPS Act is only directory and as observed above entries regarding the recovered articles were being made properly in the malkhana register so non-compliance of Section 55 of NDPS Act is not fatal in the matter and learned counsel has failed to apprise this Court regarding any prejudice that is being caused to the appellants. Accordingly, it is held that non-compliance of Section 55 of the NDPS Act is not in any manner fatal for the prosecution in the present case.

The last argument of learned counsel for the appellants is regarding the tampering of samples and it has been argued that the prosecution has failed to prove that sample was not allowed to be interfered while it was in the malkhana till it was received in chemical laboratory.

The argument of the learned counsel is three fold. Firstly, on the ground that sample was interfered before it reached to chemical laboratory and after it was entered into malkhana after its seizure. Secondly it is submitted by the learned counsel that samples that were weighed at the time of seizure were 100 gms of all the three appellants but from the chemical laboratory report it can be said that same samples were not given to the chemical laboratory those were prepared at the spot because as per chemical laboratory report the weight of the sample of Harmohan was only 50 gms whereas that of Bhuttan Mahato 100 gms and that of Jakir Hushain @ Guddu only 55 gms.

As per PW-6 Constable Anil Kumar who submitted samples before the chemical laboratory, entry regarding taking the sample from the malkhana is not being done in the malkhana register rather a G.D. Entry is made. Sample taken from malkhana were produced before the Magistrate alongwith docket and after the order of magistrate samples were being submitted to the chemical laboratory.

It is argued by learned counsel for the appellants that G.D. entry has not been produced before the court and it is not being proved as to when sample was taken from malkhana. Certainly, G.D. entry is not submitted before the court and it is not being proved. This evidence is lacking as to when sample was taken from malkhana, although in the statement of PW-6, it has come that samples were with him for 16 to 17 hours and in the meantime nobody was allowed to tamper those samples but from the facts it cannot be inferred that when samples were taken from malkhana. It is also not clear as to which of the Investigating Officer sent the sample for chemical analysis and who got the nod of the magistrate upon the docket prepared for the purpose.

As per statement of PW-6, docket was produced before the court on 1 February 2008 at that time A.K. Singh, PW-8, was Investigating Officer of the case. PW-7, Sub-Inspector, Kamlesh Singh was Investigating Officer given the charges of investigation when FIR was lodged on 26.1.2008 and after that investigation was handed over to PW-8 A.K. Singh on 30.1.2008. Case Diary No. 2 was written by A.K. Singh. After that Case Diary No. 3 dated 8 February 2008 was scrib1ed by Investigating Officer A.K. Singh wherein it has been written that he had gone on leave on 31.1.2008 so progress could not be made in the matter.

From the above facts it is clear that on 1 February 2008, no action was taken by the Investigating Officer, A.K. Singh, PW-8 whereas PW-6 has stated that he alongwith Investigating Officer went to the magistrate got the docket prepared and order for sending the sample to chemical laboratory was obtained. Prosecution ought to have explained this discrepancy and ought to have made it clear that who took the sample from the malkhana on 1.2.2008. It was also incumbent upon the prosecution to prove whether sample was taken from malkhana on 1.2.2008 itself and not prior to that and mere statement of PW-6 in this regard cannot be accepted. This is evident that prosecution has failed to prove as to when sample was taken from malkhana for sending it to chemical laboratory for analysis and in the circumstances it can be said that sample was not kept in proper custody and was allowed to be tampered with.

PW-3, head constable who entered the samples alongwith seized contraband in the malkhana also did state in so many words that samples were entered in malkhana by him and were not allowed to be interfered by anybody prior to the date when it was taken from malkhana.

In this context, learned counsel for the appellants submitted that when handling of sample is not properly proved and it is not certain that when sample was submitted in the malkhana and when it was taken from there for sending it to chemical laboratory, then same is fatal for prosecution. In support thereof learned counsel has placed reliance upon the judgment of Delhi High Court in the case of Rita Karoline Kummel Vs. Customs, 1999 LawSuit(Del) 866. Paragraph 14 of the judgment is quoted below:

"14. Thus, there is no acceptable evidence showing as to who had handled the sample packets from 12.11.1994 till their despatch to the Chemical Analyser on 21.11.1994. In the case of The State of Rajasthan Vs. Daulat Ram , their lordships of the Supreme Court observed on the facts of the case that it was the admitted case of the prosecution that the sample changed several hands before reaching the Public Analyst. The inevitable effect of the omission to examine any of the witnesses who handled the sample was that the prosecution failed to rule out the possibility of the sample being changed or tampered with during that period, a fact which had to be proved affirmatively by the prosecution. Thus, the necessary link between the contraband seized and the report of the Chemical Examiner (Ex.P.X) was missing. The prosecution has left this gulf unabridged leaving many things in the womb of mystery and we do not find it possible to salvage the prosecution case out of the gulf."

This Court is also of the view that in the above given circumstances, prosecution has failed to prove, that sample was not being interfered by anybody after it was entered into malkhana and before it was sent to chemical laboratory for analysis on 2.2.2008 by the order of the magistrate.

Although a statement has been made by PW-6 that samples were with him for 16 to 17 hours but he utterly failed to prove that when samples were taken from malkhana and it has been stated by him that he is not in recollection as to when sample was taken and who was Investigating Officer with him when samples were taken from malkhana. Name of Investigating Officer at that time could not be narrated by him. Further G.D. Entry in this regard is also not produced before the court and also not proved. Those facts that can be proved by documentary evidence cannot be allowed to be proved by oral evidence, hence Section 59 and 61 of Evidence Act comes into play and this can be said that prosecution has utterly failed in proving the non-interference by anybody in tampering the samples as same is not proved by either primary or secondary evidence.

The second contention regarding the measurement of sample is also based upon the law propounded by Hon'ble Apex Court in the case of Rajesh Jagdamba Avasthi Vs. State of Goa, 2005 AIR (SC) 1389.

This is admitted fact that out of three samples of the present case which were sent for chemical analysis, one was found 100 gms as has been measured at the time of seizure and sampling but the rest of the samples were almost 50% less than which was mentioned at the time of sealing of sample and prosecution was duty bound to explain the reduction of weight in the samples. Hon'ble Apex Court in Rajesh Jagdamba Avasthi's case (supra) has clearly stated that where 100 gms. of contraband is being sent for chemical analysis and at the time measurement chemical report it was 98.16 grams then it is also fatal for the prosecution. Hon'ble Apex Court in paragraph 14 observed as follows:

"14. We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of Charas weighing 180.70 gms. The Charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the laboratory by Junior Scientific Officer, PW-1, he found the quantity to be different. While in one envelope the difference was only minimal, in the other the difference in weight was significant The High Court itself found that it could not be described as a mere minor discrepancy. Learned counsel rightly submitted before us that the High Court was not justified in upholding the conviction of the appellant on the basis of what was recovered only from envelope 'A' ignoring the quantity of Charas found in envelope 'B'. This is because there was only one search and seizure, and whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceeding is considerably eroded if it is found that the quantity actually found by PW-1 was less than the quantity sealed and sent to him. As he rightly emphasized, the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW-1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful."

The observation of the Hon'ble High Court in the said matter was not favoured by the Hon'ble Apex Court and it is emphasized by Hon'ble Apex Court that it is not relevant that how much of contraband was being seized but it is to be seen whether there was actual seizure and whether what was seized was really sent for chemical analysis is relevant and prosecution has to explain this discrepancy in which prosecution has utterly failed. Weight of sample 100 gms to 50 gms cannot be accepted in any case. In case it is being safely sent from malkhana to chemical laboratory then samples of same weight ought to have reached chemical laboratory.

It is submitted by the learned AGA that sample was weighed at the time of seizure from the Balance that was recovered from the appellant Jakir Hushain and that Balance might not have given the exact weight and when same were weighed at chemical laboratory, were found less in weight. It is also submitted that weight at the time of seizure was taken from an ordinary Balance whereas weight at the chemical laboratory must have taken by chemical balance. So the difference in weight can be accepted and will not vitiate the proceeding.

The contention of learned AGA is hardly acceptable. Had weights of all the samples were found to be near 50 gms then it could have been assumed that weight of samples that was taken at the time of seizure could have been faulty due to Balance whereas one of the sample was found 100 gms whereas rest two samples were found 50 and 55 gms. respectively. Had this been the fault of the Balance, then weight ought to have come about 50 gms each of the samples but that is not so. Moreover, police personnel who have arrested the appellants are supposed to understand the difference between 50 gms and 100 gms. and if any balance is weighing 50 gms as 100 gms it could have been very well deciphered by the naked eyes. In the circumstances, the arguments of learned AGA cannot be accepted.

The third contention of the learned counsel for the appellants regarding the tampering of sample is based upon the seal that was put on the samples. It is submitted by the learned counsel that as per statement of PW-1, he used his seal for sealing the sample as well as contraband whereas PW-3 Badshah Singh who was stationed as Constable Clerk at Police Station Armapur at the relevant time, in the cross-examination has clearly stated that all the 14 bundles were having seal of Tej Bahadur Singh and was also signed by Tej Bahadur Singh. It is relevant to mention here that PW-2 Tej Bahadur Singh was member of the arresting party whereas name of PW-1 is Anand Prakash Mishra.

Although PW-2 has failed to narrate as to whose seal was on the samples and contraband and who got the seal affixed at the time of arrest upon the 14 bundles that were prepared after the seizure.

The chemical laboratory report in specific terms narrates that seal upon the samples were of U.P.P. (Uttar Pradesh Police) and not of PW-2 Tej Bahadur Singh.

From this fact it can be inferred that when seizure was being made and sample is being prepared it was sealed by Tej Bahadur Singh but when it reached to chemical laboratory. Seal of U.P.P. was found and accordingly it can be said that original seal that was affixed at the time of seizure was being replaced by U.P.P. and it was incumbent upon the prosecution to have made it clarified as to when the seals were changed but prosecution is conspicuously silent about this.

On this basis it can be said that samples were tampered and seals were changed but why they were changed, prosecution has failed to explain and all these facts can be interpreted against the prosecution and on that basis it can be said that whatever was seized and sealed at the spot and the samples that were made and entered in malkhana and what was actually sent to the chemical laboratory for analysis were not the same and due to this discrepancy conviction of the appellants by the trial court cannot be upheld.

In the facts and circumstances narrated above, this Court is of the view that samples were being tampered before they were sent for analysis to chemical laboratory, they were not kept in safe custody after entering into malkhana and before were sent to chemical laboratory for report. Discrepancy is of such a nature which cannot be sustained. In the circumstances, the appeal is liable to be allowed.

Accordingly the appeals are allowed. The judgment of conviction dated 1.9.2010 passed by Additional Sessions Judge (F.T.C.-1), Kanpur Nagar is hereby set aside and the appellants Harmohan, Jakir Hushain @ Guddu and Bhuttan Mahato are acquitted of the charges under Sections 20B (ii)(c) N.D.P.S. Act arising out of Crime No. 4 of 2008, Crime No. 5 of 2008 and Crime No. 6 of 2008 respectively related to Police Station - Armapur, Kanpur Nagar.

The appellants will be released forthwith, if not wanted in any other case.

The lower court records shall be transmitted to the trial court alongwith a copy of the judgment for taking necessary action.

Order Date :- 18.10.2016

Ranjeet Sahu