Smt. Vimla Gatri vs State Of U.P.
2017 Latest Caselaw 3513 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Case :- 		JAIL APPEAL No. - 932 of 2015 
 
Appellant :-	 Smt. Vimla Gatri 
 
Respondent :- 	State Of U.P. 
 
Counsel for Appellant :- From Jail 
 
Counsel for Respondent :- A.G.A. 
 

 
Hon'ble Mrs. Vijay Lakshmi, J. 

This Jail Appeal has been filed through concerned Jail Superintendent by the convicted appellant Smt. Vimla Gatri against the judgment and order dated 24.1.2015 passed by the Additional Sessions Judge, Court No. 1, Maharajganj in Special Case No. 4 of 2011 (State Vs. Vimla Gatri) whereby the appellant has been convicted and sentenced for the offence under Section 8/23 of the N.D.P.S. Act with ten years rigorous imprisonment and fine of Rs. 1 lakh. and in default of payment of fine, to undergo one year additional imprisonment.

Heard Sri Amit Kumar Srivastava, learned Amicus Curiae for the appellant and learned A.G.A. representing the State. Perused the record.

A brief description of the relevant facts is that on 28.11.2010, Station House Officer of Police Station Sonauli, district Maharajganj Sri R.V. Sharma (the first informant), alongwith Con. Alok Rai, Con. Ram Tapasya, S.I. Kamlesh Mishra and two lady constables Supriya Bharti and Geeta Kumari was patrolling on the Indo-Nepal border on a government Jeep driven by driver Charanjeet Singh. When the aforesaid police team was busy in checking the persons and the vehicles crossing the border of India-Nepal, at about 2.00 P.M., they saw a lady (the appellant) crossing the Nepal border. On being inquired by the lady constables, she told her name as Vimla Gatri, resident of Kapilvastu, Nepal. Before taking her search, she was asked whether she intends to be searched before a Gazetted Officer or by the lady constables, she opted for her search by lady constables. Thereupon, the woman was taken inside a temporary plastic cabin and the lady constables conducted her search. On search, 10 packets of Charas kept in polythene bags were found tied on her waist by means of a piece of black cloth. The Con. Alok Rai brought a weighing scale and when the recovered Charas was weighed, it was found to be 5 kgs. On being inquired, the accused/appellant informed that a Nepali lady Sheela had instructed her to deliver this Charas at Sonauli. Sheela had promised her to pay Rs. 5000/- in Nepali currency as a consideration for this work. As advance she had paid Rs. 500/- in Indian currency. Stating this, the appellant took out a Rs. 500/- note and gave it to the police. She was taken into custody and arrest memo was prepared. Out of the total recovered Charas, 100 gms. charas was taken out as a sample and sealed in a piece of cloth. The remaining Charas was sealed in the same black cloth by which the accused had tied it on her waist. The higher officers were informed through Police Chowki Delaiya about the seizure and about the arrest of accused. The members of public were asked to be witness but they did not agree. The signatures of members of police team and of the accused were taken on the seizure memo and a copy was given to the accused. The sample of the Charas was sent for chemical examination to Vidhi Vigyan Prayogshala, Ramnagar, Varanasi, where after chemical examination, the sample was found to be of "Charas".

On the basis of F.I.R. lodged against the appellant, Case Crime No. 858 of 2010, under Sections 8/23 N.D.P.S. Act , P.S. Sonauli, district Maharajganj was registered and the matter was investigated. The I.O. recorded the statements of the witnesses, inspected the spot, prepared the site plan and after concluding the investigation, submitted charge-sheet against the appellant. Cognizance was taken on the chargesheet and Special Case No. 4/11 commenced in the court of Additional Sessions Judge, Maharajganj, where charges under Sections 8/23 N.D.P.S. Act were framed against the appellant from which, she denied and claimed her trial.

During trial, the prosecution in order to prove its case produced six witnesses in all.

P.W. 1 is Constable Ram Nath Rawat who has prepared the check F.I.R. and has made entries with regard to registration of case in the General Diary.

P.W. 2 is constable Ram Tapasya, who was a member of the police party and an eye witness of the occurrence.

P.W. 3 is lady Constable Geeta Kumari who had taken the search of the appellant.

P.W. 4 is Mr. R.V. Sharma, who was the Incharge Officer of Police Station Sonauli at the time of occurrence.

P.W. 5 is S.I. Rajendra Tripathi who was posted as Incharge of Police Chowki Bhagwanpur. He is the first Investigating Officer of this case,

P.W. 6 is Inspector Suneel Kumar Rai. He is the second Investigating Officer who has submitted chargesheet against the appellant.

Apart from the above-mentioned oral evidence, the prosecution has produce the check report (Ext. Ka 1), Carbon copy of G.D. Entry regarding registration of case (Ext. Ka. 2), recovery memo (Ext. Ka. 3), site plan (Ext. Ka. 4) and charge-sheet (Ext. Ka. 5) as documentary evidence. Chemical examination report has also been produced by the prosecution which is paper no. 14 Ka on the record.

After the conclusion of the prosecution evidence, the statement of the accused appellant under Section 313 Cr.P.C. was recorded, in which she denied from all the allegations and stated that she was coming to India for doing labour work but the police falsely implicated her due to misunderstanding. No defence evidence was produced by her.

The learned trial court after a detailed discussion of the evidence available on record and relying on the law laid down in various judgments of Apex Court, found the appellant guilty and convicted and sentenced her as aforesaid.

Aggrieved by her conviction and punishment, the appellant has challenged the legality and correctness of the impugned judgment on the following grounds :-

1. There is no compliance of Section 50 of N.D.P.S. Act as the appellant was never apprised by the police that she has a right to be searched by a Gazetted Officer despite the fact that the Charas has been found from the person of the appellant (tied on her waist).

2. There is no public witness despite the fact that the place of seizure is a busy place near Sonauli. Moreso, the time was afternoon at about 2.00 P.M.

3. The actual percentage of 'Charas' has not been mentioned in the chemical analysis report, therefore, it is not clear whether the entire contraband weighing 5 kgs. was Charas or whether only some percentage of it was containing Charas.

4. Constable Alok Rai, who is said to have brought the weighing scale, has not been examined, therefore, the prosecution has failed to prove the fact that the recovered Charas was weighed on the spot and what was its actual weight.

5. There is no material exhibit of weighing scale which shows that the same has not been produced in the court.

6. The sample of Charas was taken out from only one polythene packet whereas it should have been taken out from each and every packet and mixed before sending it for chemical examination, so as to make it homogeneous.

7. The learned trial court has not considered what the witnesses have deposed during their cross-examination and has passed the judgment without proper appreciation of the evidence.

On the aforesaid grounds it has been prayed that the impugned judgment be set aside and the appeal be allowed.

Per contra, learned A.G.A. has vehemently opposed the appeal by arguing that there is sufficient and credible evidence on record showing the involvement of the appellant in commission of the offence on the basis of which the prosecution has fully proved its case against her beyond all reasonable doubts. Learned A.G.A. has contended that the learned trial court has considered and discussed each and every aspect of the case, the impugned judgment and order does not suffer from any infirmity, illegality or defect requiring any interference by this Court and as the learned trial court has rightly convicted and sentenced the appellant under Section 8/23 of N.D.P.S. Act, the appeal is liable to be dismissed.

For the purpose of coming to a right conclusion in this case, it is necessary to have a bird's eye view on the statements of the witnesses produced from both sides.

P.W. 1 is Constable Ram Nath Rawat, who was posted as Constable Moharrir at P.S. Sonauli on 28.11.2010. He has stated that on 28.11.2010 at 4.25 P.M. he had registered the aforesaid case as Case Crime No. 858 of 2010 under Section 8/23 N.D.P.S. Act against Vimla Gatri wife of Ram Bahadur Gatri, resident of Shivpur, P.S. Sunari, district Kapilvastu, Nepal on the basis of seizure memo and arrest memo filed by S.H.O. R.P. Sharma and had prepared the check F.I.R. P.W. 1 has formally proved the check F.I.R. and carbon copy of the G.D. entries which were marked as Exts. Ka. 1 and 2 respectively.

P.W. 2 is Constable Ram Tapasya who was one of the member of the police team apprehending the appellant on the border of India-Nepal. He has reiterated the facts mentioned in the seizure memo. There is no need to repeat the same.

P.W. 3 is lady Constable Geeta Kumari who has stated that she, alongwith another lady constable Supriya Bharti, had conducted the search of the appellant on 28.11.2010. Before taking her search the accused Smt. Vimla Gatri was informed by them that she had a right to be searched before a Gazetted Officer but she stated that she is ready to give her search to the lady constables. Thereafter, both the lady constables took her inside the plastic cabin and took her search and found 10 packets Charas in polythene packets, tied on her waist by a black coloured cloth. P.W. 3 has also stated that before taking the search of accused, both the lady constables had taken search of each other. P.W. 3 has further stated that the accused informed that she was bringing the Charas from Butwal under the instructions of a lady named Sheela for a consideration of Rs. 5000/- Nepali currency. Sheela had given her a 500/- rupee note in Indian currency as advance which accused-appellant took out and handed over to the lady police constables. Thereafter 100 gms. of Charas was taken out as sample from the recovered Charas and was sealed in a piece of cloth. The sample of seal was prepared. The relatives of the lady accused were informed through Belahiya police chowki. Seizure memo was prepared and its copy was given the accused. Several persons were present there but no one agreed to become witness. She (P.W. 3) had also put her signature on the seizure memo. She has identified her signature on the recovery memo.

P.W. 3 has been cross examined at length by learned defence counsel. During her cross examination she has admitted that written consent of the accused was not obtained before her search though the Charas was found tied on her waist.

P.W. 4 is R.V. Sharma who was In-charge Inspector of P.S. Kotwali Sonauli, district Maharajganj at the time of occurrence. He is the first informant. He has corroborated all the facts mentioned in the recovery memo during his examination-in-chief and there is no need to repeat the same. He has stated that 100 gms. of Charas was taken out as sample. He has further stated that at about 4.30 P.M. they had reached to the police station to lodge the F.I.R. However, during his cross examination, he too, like P.W. 3, has admitted the fact that written consent of the accused was not taken before her search. P.W. 4 has duly proved the seizure memo by stating that it was prepared in his own hand writing, which was marked as Ext. Ka. 3. During his examination, the recovered Charas was produced before the court and was duly proved. Pieces of white cloth and black cloth were marked as material Exts. 1 and 2 and the 10 packets of 'Charas' were also marked as material exhibits.

P.W. 5 is the first Investigating Officer who has proved the site plan which was marked as Ext. Ka. 4. He has stated about the normal proceedings of investigation.

P.W. 6 is the second Investigating Officer who has filed the chargesheet against the appellant after conclusion of the investigation which he has duly proved in the court as Ext. Ka. 5.

The appellant did not produce any defence witness. During her statement under Section 313 Cr.P.C. she made a general denial of all the questions put to her by simply stating "Galat Hai". She stated that she was coming to India for doing labour work and was falsely implicated in this case. However, she has not given any reason behind her false implication. She has not even stated about any enmity with the police party.

Upon a careful perusal of the statements of the prosecution witnesses, it appears that all of them are throughout cogent and consistent in their testimony. There does not appear any material contradictions, omission or embellishment in their statements. Nothing has been elicited during their cross-examination to cast a doubt on the veracity of their statements and their depositions as a whole, inspire confidence.

In so far as the compliance of Section 50 is concerned, as in the present case, the Charas has been found tied on the waist of the appellant, strict compliance of Section 50 was mandatory before her search.

Learned counsel for the appellant has vehemently argued that the appellant was not communicated by the police officer about her right to be searched in presence of a Gazetted Officer whereas the accused must be made aware of the existence of such a right.

There does not appear any substance in the aforesaid argument.

A careful perusal of the statements of the witnesses clearly shows that the police has complied with the mandates of Section 50 in the present case. In the seizure memo it is clearly mentioned that the appellant was apprised about the two options by asking her that whether she would give her search before a Gazetted Officer or by the lady constables. P.W. 2 and P.W. 3 both have corroborated this fact during their testimonies by stating that the accused was informed that she has a right to be searched in presence of a gazetted officer. There is no reason to disbelieve their testimony. It is also worth mentioning that there is no set proforma or specific language for apprising the accused about his/her right to be searched in the presence of a Gazetted Officer as is laid down by Hon'ble Apex Court in the case of Prabhashankar Dubey Vs. State of M.P.; (2004) 2 SCC 56, where the Apex court has held that:

"The stress is on the adoption of a reasonable, fair and just procedure. No specific words are necessary to be used to convey the existence of the right. There can be no straight jacket formula."

In so far as the non examination of public witness is concerned, it does not make any difference. Although all the witnesses produced by the prosecution are police personnels, but only for the reason that the witnesses are police personnels, their statements cannot be discarded specially when there is no allegation of any enmity with them.

The Hon'ble Apex court in its recent judgment rendered in Baldev Singh Vs. State of Haryana, 2016 Cri. L.J. 154 has held as under:

"There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness."

.........

"In his statement under Section 313 Cr.P.C., the appellant had not stated anything as to why would the police foist the false case against the appellant. It is to be noted that huge quantity of poppy straw was recovered from the possession of the appellant. Admittedly, the police officials had no previous enmity with the appellant. It is not possible to accept the contention of the appellant that he is being falsely implicated as it is highly improbable that such a huge quantity has been arranged by the police officials in order to falsely implicate the appellant."

In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, the Hon'ble Apex Court has held as under:

"Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."

The amount of the recovered contraband Charas, which is a very expensive item, is such that it negates even remote possibility of the same being planted by the police. Further more no evidence with regard to bias or malice against the Investigating Agency has been adduced and no reason has been disclosed by any of the appellant for her false implication.

All these facts properly and sufficiently establish the prosecution case against the appellant beyond any shadow of reasonable doubt. Therefore, only on the ground of a trivial issue that sample was not taken from each of ten packets and mixed so as to make it homogeneous, the prosecution case cannot be discarded as a whole and the entire proceedings of trial cannot stand vitiated only on this ground.

Keeping in view all the facts and the circumstances of the case in the light of relevant legal provisions and the law laid down by the Hon'ble Apex Court in the cases cited above, this court is of the considered view that the learned trial court has rightly convicted and sentenced the appellant and the impugned judgment does not require any interference by this Court.

The appeal filed by the appellant is devoid of merit, is liable to be dismissed and is accordingly dismissed. The accused is in jail. She shall remain in jail and shall serve out the remaining part of sentence awarded to her by the trial court.

Let the lower courts' record be sent back to the trial court along with a copy of this judgment without any delay for taking necessary action.

Sri Amit Kumar Srivastava, learned Amicus Curie, who has very efficiently assisted this Court shall be paid Rs. 15,000/- as his fee for his valuable assistance.

Dated : August 23, 2017

S.B.