Laxmi Kant Gupta @ Mangru Gupta vs State Of U.P.
2017 Latest Caselaw 8145 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
CRIMINAL APPEAL No. - 5641 of 2011
 

 
Appellant :- Laxmi Kant Gupta @ Mangru Gupta
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Kunwar Umesh Nigam,Narendra Deo Rai,Praveen Kumar Srivastava,S.C. Singh,Snehil Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Connected with
 

 
CRIMINAL APPEAL No. - 1286 of 2011
 

 
Appellant :- Sanjay Pandey
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sharad Chandra Singh,Ganesh S.Srivastava,Praveen K.Srivastava,Satish Chandra Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

As both these appeals have been filed against the same impugned judgment dated 04.02.2011 passed by the Additional Sessions Judge F.T.C.-I in S.S.T. No. 39 of 2009 (State Versus Laxmi Kant and others) Sidharth Nagar, both are being disposed of by this common judgment.

Aggrieved by their conviction under Section 20 of N.D.P.S. Act and sentence of 10 years Rigorous Imprisonment with fine of Rs. 1,20,000/- imposed on each of them, the appellants are before this Court by way of aforesaid appeals.

Heard Sri Ravindra Kumar Srivastava, Advocate on behalf of the appellants and learned A.G.A. representing the State. Perused the impugned judgment and lower Court's record.

The facts in brief are that on 14.09.2009 S.O.G. In-charge Dinesh Kumar Yadav alongwith some police officials was going towards Burdpur on patrol duty in order to check the smuggling, and as soon as he crossed the Kasba Navgarh, he received a secret information by police informer (Mukhbir) that two persons having charas with them are coming on a Hero Honda Motorcycle C.D. Don No. U.P.58B-7469 from Nepal. Believing on the secret information, S.O.G. Incharge Dinesh Kumar Yadav proceeded towards Burdpur and saw two persons coming on a Motorcycle. The informer after identifying them left the place. The police team tried to stop the motorcycle on which the appellants turned around their motorcycle and tried to run away, however, they were apprehended by the police team with great efforts. On being inquired, the person, who was driving the motorcycle told his name as Sanjay Pandey and the pillion rider disclosed his name as Lakshmi Kant @ Mangru Gupta. When they were asked about the reason for their running away, they informed that they had charas with them therefore, they were trying to run away. Both the accused were informed by the police team that as they have charas with them, they have the option to be searched before a gazetted officer, however, both of them opted to be searched by the police team itself and gave their written consent for this. Thereafter, the police officials conducted search of each other in order to rule out any possibility of having any contraband with them. During search of the appellants, Rs.150/- was found from Sanjay Pandey and from the possession of appellant Laxmi Kant Gupta @ Mangru Gupta, 338 pieces of charas (some in cylindrical and some in spherical shape) were recovered from the bag, he was carrying. A Sim Card and Mobile Phone was also rcovered from the possession of Laxmi Kant Gupta @ Mangru Gupta. The arrest memo (Ext. K-3) was prepared. The appellants confessed that they use to earn their livelihood by smuggling charas from Nepal. After this, they were arrested at 12.00 P.M. by the police team. The recovered contraband (charas) was weighed and it was found to be of 12 Kg, out of which 4 pieces, (two in cylindrical shape and two in spherical shape) were taken out as sample and were kept in a sealed container for sending it to the chemical examiner. Remaining charas was left in the same bag which was also sealed by the police and sample of the seal was prepared. Information was sent to the Superior Officers by mobile phone. At the time of the arrest of appellants, public witnesses had gathered on the spot but when they were asked to be a witness, they silently left the place. The motorcycle was taken into custody. The recovery memo (Ext. K-a) was prepared, copies whereof were given to the appellants.

On the basis of aforesaid recovery memo, Case Crime No. 1492 of 2009 was registered against both the appellants at P.S. Sidharth Nagar and check report was prepared, which shows that the time of occurrence is 12.00 P.M. on 14.09.2009, the report has been lodged at 14.30 minutes on the same day and the distance between the place of occurrence and the police station is 06 kms.

Charge under Sections 20 (b) (2) (c) (ii) of N.D.P.S. Act was framed against the both the appellants, who denied from the same and claimed their trial.

The Prosecution in order to prove its case, produced six witnesses in all.

PW-1 is S.I. Dinesh Yadav, who is the first informant, PW-2 is the Head constable, Chandra Bhan Paswan, who was one of the members of the police team apprehending the appellants, PW-3 is S.I. Lal Bahadur Bharti, who is the Investigating Officer, PW-4 is Constable Devi Sharan Pandey, who alongwith the Investigating Officer has produced the samples of contraband/ Charas before the Sessions Judge, Siddharth Nagar and after the inspection of the Court, has taken it to F.S.L. Lucknow for chemical examination, P.W.5 is Constable Ram Nakshtra Gautam, who has prepared the check report and has duly proved it before the Court as Ext. K-2, P.W.5 has also produced the Malkhana Register before the trial court and has proved its relevant entries related to the present case by identifying his hand writing, P.W.6 is Constable Nagendra Singh, who has made entries regarding registration of the case in the general diary. He has proved the carbon copy of the G.D. identifying his own hand writing and signature on it. Apart from the above oral evidence, several documents prepared by the police during course of investigation, including the F.S.L. Reports were produced by the prosecution in order to prove its case.

After conclusion of the prosecution evidence, the statement of appellants were recorded under Section 313 Cr. P.C. in which both of them denied from the charges and claimed their false implication. Appellant Sanjay Pandey stated that police had arrested him 13.09.2009 at 8.00 P.M. from his Beetal shop and falsely implicated in this case. Appellant Laxmi Kant Gupta @ Mangru Gupta stated that on 13.09.2009 he had gone to attend the birthday party of daughter of his relative namely Amit Kumar from where he returned on the next day. The police arrest him at 10.00 A.M. and after assaulting him badly, implicated in this case.

In their defence, the appellants have produced the aforesaid Amit Kumar as D.W.1, who has stated that Laxmi Kant Gupta @ Mangru Gupta is the son of his Aunt (Bua), and on 13.09.2009 Laxmi Kant Gupta @ Mangru Gupta had visited his house on his invitation to celebrate the birthday party of his daughter. Appellant Laxmi Kant Gupta @ Mangru Gupta had stayed there at the night of 13.09.2009 and had left his house on the next day morning, after taking food. After 3 or 4 days, wife of Lakshmikant had informed him that police had falsely implicated her husband.

Learned Trial Court, after a detailed discussion of the entire evidence produced from both the sides, convicted and sentenced the appellant as aforesaid.

The legality and correctness of the impugned judgment have been challenged by the learned counsel for the appellants mainly on the following grounds:-

1. There is no compliance of the Section 50 of N.D.P.S. Act, as the appellants were not informed that they have a right to be searched before the Gazetted Officer, where as it was mandatory for the police party searching the appellants, to have informed them about their right.

2. All the prosecution witnesses are police personnels, who are highly interested witnesses, and there is no independent witnesses of the alleged recovery which has been planted by the police.

3. The Contraband allegedly recovered from the possession of the appellants was neither properly sampled nor properly sealed. In this regard, learned counsel for the appellants has drawn the attention of this Court to Order No. 1/39 issued by the Government of India, Ministry of Finance, New Delhi and has argued that samples should have been homogeneous, which means that it must have been ensured that equal quantity is taken from each packet/container of that lot and be mixed together to make it homogeneous. Learned Counsel for the appellants has further contended that aforesaid order also provides for proper sealing of the sample, according to which seal should be legible and the envelop containing the sample be properly marked. Learned counsel for the appellants has submitted that aforesaid order also provides that sample should be sent either by the registered post or through special messenger duly authorized for such purpose, and the sample must be dispatched to the laboratory within 72 hours of the seizure. Learned counsel has further contended that in the present case, whereas the report of the F.S.L., Lucknow shows that seal of the District Judge, Sidharth Nagar was found on the sample and the prosecution, has not produced any link evidence to prove as to how and when the seal was changed.

4. There is no compliance of Section 42 and 57 of N.D.P.S. Act.

5. There is no evidence as to what happened of the motorcycle seized by the police and also of the mobile phone of Laxmi Kant Gupta @ Mangru Gupta.

6. Malkhana register is manipulated, hence, it is not reliable.

7. The statements of the witnesses are not reliable due to several contradictions, omissions and improvement.

8. P.W. 5 and 6 both have stated that they have not seen any injury on the body of the accused, whereas injury reports of the appellants which are available on the record show otherwise. Appellant Laxmi Kant Gupta @ Mangru Gupta was examined on 15.09.2009 at 2.12 P.M. i.e. on the next day and five injuries were found on his body, simple in nature and caused by the hard blunt object, approximately one day old.

9. P.W.3 has admitted that appellants have no criminal history.

10. The defense witness DW-1 has not been cross-examined by the prosecution, therefore, there is no reason to disbelieve his un-controverted testimony .

11. The appellant Sanjay Pandey who was found driving the motorcycle and from whose possession nothing has been recovered except Rs. 150/- in cash, cannot be said to have any knowledge that co-accused Laxmi Kant was carrying any contraband and as the appellant Sanjay Pandey was not in conscious possession of the contraband, his conviction is illegal.

In support of the aforesaid contentions, learned counsel for the appellants has placed reliance on following judgment; namely State of Rajasthan Versus Bher Singh (2009) 16 SCC 293, Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panji, Goa 1993 SCC (Crl) 803 and Noor Aga Vs. State of Punjab 2010 (71) ACC 575.

Per contra, the learned A.G.A. has vehemently contended the appeal on the ground that all the provisions relating to search and seizure have been duly complied with by the police. As the recovery of charas has been made from the bag of appellant Mangru, Section 50 of the N.D.P.S. Act has no application in this case. Learned A.G.A. has argued that recovery has been made from a public place, therefore, Section 52 of the N.D.P.S. Act. is also not applicable and the present case comes under Section 53 of N.D.P.S. Act and not under Section 52 of N.D.P.S. Act. Learned A.G.A. has further contended that learned Trial Court, after a proper and reasonable appreciation of entire evidence led by the parties and after discussing in detail each and every factual and legal aspect of the matter has found the appellants guilty and has punished them accordingly, therefore, there is no reason to interfere with the impugned judgment and both the appeals are liable to be dismissed.

Considered the rival submissions of the learned counsel for the parties.

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

PW-1 S.I. Dinesh Yadav, who is first informant has stated that on 14.09.2009 he was posted as In-charge S.O.G., Siddharth Nagar. On that day, when he was going towards Burdpur alongwith Constable Chandra Bhan Paswan, Constable Dinesh Kumar, Constable Yogendra Kumar, Constable Phool Chandra Chaudhari, and Constable Dilip Yadav to check smuggling, he received a secret information by a police informer, 'Mukhbir', that two persons were coming from Nepal on motorcycle having charas with them. PW-1 has further stated that believing on such secret information, he proceeded alongwith Mukhbir towards Burdpur, and as soon as he reached Madhubeniya, he saw two persons coming on a motorcycle. Seeing the police, they tried to run away from there by turning around their motorcycle, but the police party surrounded and caught them. The driver of the motorcycle disclosed his name as Sanjay Pandey and pillion rider told his name as Laxmi Kant Gupta @ Mangru Gupta. They confessed that, as they have illegal charas with them, therefore, they were running away seeing the police. They were informed that they have a right to be searched in presence of gazetted officer, however, they stated that when the police has already apprehended them, they are ready to be searched by the police and there is no need to call any gazetted officer. They also gave their consent in writing.

After receiving their written consent, the police party conducted their search. During search, nothing was recovered from the possession of appellant Sanjay Pandey, except Rs. 150/-. Appellant Laxmi Kant Gupta @ Mangru Gupta was carrying a bag in his hand, in which 338 pieces of charas, some in cylindrical shape and some in spherical shape were recovered. Appellants failed to show any valid paper for keeping the contraband with them and confessed that they use to earn their livelihood by smuggling charas from Nepal. Recovered charas was weighed and its weight was found to be 12 Kg, out of which 4 pieces, (two in cylindrical shape and two in spherical shape) were taken out as sample and sealed in a piece of cloth. The remaining charas was sealed in the same bag from which it had been recovered. The sample of the seal was prepared. Several persons from general public had gathered on the spot, however, when they were asked to be witness, they silently left the place. The photograph of the recovered charas was taken by the Mobile Camera of the informant. As the appellants had failed to show any valid papers of the motorcycle, they were travelling at that time, the motorcycle was also seized. The signature of the appellants and of the police witnesses were taken on the recovery memo and the information was given to the Higher officers by mobile phone and R.T. Set.

P.W.1 has duly proved the recovery memo which was marked as (Ext. K-1), he has also proved the written consent given by the appellants which was marked as (Ext.K-2), and the arrest memo was marked as (Ext. K-3).

During the course of examination of the witnesses, recovered charas was produced in the trial Court in a sealed container and P.W.1 identified his signature and the date 14.09.2009 marked on it. When the sealed packet was opened before the Court, 334 pieces of charas (some in cylindrical shape and some in spherical shape) were found in it.

P.W.2 Head Con. Chandra Bhan Paswan has stated that he was on duty with S.O.G. Team, Sidharth Nagar on 14.09.2009. He was going to Burdpur alongwith in-charge S.O.G. Dinesh Kumar Yadav and his other colleagues. On receiving a secret information, they had arrested the appellants alongwith charas. This witness has fully corroborated the statement of P.W.1 and the facts mentioned in the recovery memo and there is no need to repeat the same. However, during his cross-examination, he has admitted that samples were not drawn from all the 338 pieces of Charas. He has stated that the higher officers were informed by the Wireless and Mobile Phone.

PW-3 S.I. Lal Bahadur Bharti, who is the Investigating Officer of this case, has stated that on 15.09.2009 he was posted at P.S. Siddharth Nagar and was entrusted with the investigation of this case. He has stated that he had inspected the place of occurrence and had prepared the site plan. He has further stated that on 22.09.2009 he had brought the recovered charas to the Court where docket was prepared and Constable Devi Sharan Pandey was entrusted with the task of taking the charas to F.S.L. Lucknow for chemical examination. He has proved the site plan as Ext.11-K and the charge sheet submitted by him as Ext. Ka-4 respectively. During his cross-examination, he has admitted that nothing was recovered from the possession of the accused Sanjay pandey, except Rs. 150/- in cash. He has stated that charas was sent to Vidhi Viggyan Prayogshala, Lucknow after 8 days by him and for the aforesaid 8 days it was kept in Malakhana. He has also admitted that both appellants have no criminal antecedent to their credit.

P.W.4 Constable Devi Sharan Pandey has stated that on 23.09.2009 he was posted at P.S. Sidharth Nagar and on that day he had placed the sample of charas in a sealed state before the Sessions Judge, Siddharth Nagar, before whom the sample was opened and a separate docket was prepared. The Sessions Judge, Siddharth Nagar, after seeing it and after certifying his signature, entrusted the sample of charas to him to be taken to the Vidhi Viggyan Prayogshala, Lucknow. On 24.09.2009 he had deposited the charas at Lot No. 6068 and had reported at police station on 26.09.2009. He has proved the docket and also the relevant entries about his departure and arrival at Police Station, by producing original general diary in the Court. He has further stated that in the entire period when the sample of charas was in his possession, no one was allowed to touch it and it was kept intact in a sealed container.

During his cross-examination, PW-4 has stated that he cannot recollect the weight of charas recovered in this case. He has also stated that sample of charas, opened before the Sessions Judge, Siddharth Nagar, was not weighed at that time. He has stated that he travels by bus but the ticket of bus by which he had travelled to Lucknow, has not been filed in this case because he had earlier filed it to claim his travelling allowance.

PW-5 is constable Ram Nakshatra Gautam, who has produced Malakhana register in the Court and has proved its relevant entries by identifying his hand writing.

P.W.6 is Constable Nagendra Singh has stated that on 14.09.2009 he was posted at P.S. Siddharth Nagar. He had made relevant entries in the general diary of the police regarding registration of the case. He has duly proved it by identifying his hand writing and his signature.

A careful perusal of the statements of all the aforesaid prosecution witnesses disclose that they have complied the mandatory provisions provided under the N.D.P.S. Act. It is true that in this case all the prosecution witnesses are police officials but there is no reason to disbelieve their statements. They all are independent witnesses and the appellants have not shown any reason in their statements u/s 313 Cr.P.C. as to why the police officials have falsely implicated them in this case. Only due to the reason that the prosecution witnesses are police officials, their entire evidence cannot be discarded, specially when no material discrepancy is seen in their statements.

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."

So far as compliance of sections 42 and 57 of the N.D.P.S. Act is concerned, the Hon'ble Apex Court in its recent judgment delivered on 28.11.2016 in Criminal Appeal No. 1096 of 2016, Dalbagh Singh Vs. State of Punjab, while relying on its earlier judgment rendered in Sajan Abraham Vs. State of Kerala (2001)6 SCC 692 by a Bench of three Hon'ble Judges, has held that section 57 of the NDPS Act is not mandatory in nature but only directory, and unless it is demonstrated that non-compliance of it has caused prejudice to the accused persons and has resulted in failure of justice, these rules, which deal with the steps to be taken by the officers after making arrest or seizure, will not invalidate such arrest or seizure.

The Hon'ble Apex Court in its one more recent judgment delivered on 7.9.2016 in Criminal Appeal Nos. 1020-1021 of 2009, Girish Raghunath Mehta Vs. Inspector of Customs and others, has held that where the recovery is from a public place, strict compliance by the Investigating Agency should not be required in an emergency situation so as to avoid misuse by drug peddlers.

Moreover, PW2 has stated that higher police officers were informed about the recovery by mobile phone.

In Bahadur Singh Vs. State of Haryana; 2010 (4) SCC 445, the Hon'ble Apex Court has held that substantial compliance of Sections 42 and 57 of N.D.P.S. Act is sufficient unless the accused can show that he was prejudiced thereby. The Hon'ble Apex Court in the aforesaid case, has observed as under :-

"With advancement of technology and availability of high speed exchange of information, some of the provisions of N.D.P.S. Act including Section 42 have to be read in the changed context. Information sent by wireless is sufficient. No prejudice was shown to have been caused to accused on account of non reduction of secret information into writing and non sending of the same immediately thereafter to the higher officer.

Information of arrest of appellant and seizure of contraband had been fully reported to the local police station on basis whereof F.I.R. was drawn. Thus, there was substantial compliance of Section 42 and Section 57 of N.D.P.S. Act."

A Constitution Bench of Hon'ble Apex Court in the case of Karnail Singh Vs. State of Haryana; (2009) 8 SCC 539 has held :

"if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior."

The amount of Charas recovered from the possession of the appellants is multiple times more than its commercial quantity, which is 1 Kg., whereas the appellants were found carrying 12 Kg of Charas with them. Therefore, the amount of contraband being of such huge quantity and Charas being a very expensive contraband, it cannot be planted by the police.

In this case, the Charas has been recovered from the bag, which the appellants were carrying, hence section 50 of the N.D.P.S. Act will not apply in this case in view of the law as laid down by the Hon'ble Apex court in Jarnail Singh Vs. State of Punjab; AIR 2011 SC 964, wherein it has been held that:

".........Section 50 can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted........

.........Section 50 is applicable only where search of a person is involved and said section is not applicable nor attracted where no search of a person is involved. Thus search and recovery from a bag, brief case, container, etc. does not come within the ambit of Section 50 of the Act......."

The facts of the present case clearly show that the appellants were in conscious possession of Charas as they were caught red-handed by the police with Charas kept in the bag, which they were carrying.

In Baldev Singh's case (supra) the Apex Court has observed as under:-

Once the physical possession of the contraband by the accused has been proved, Section 35 of the NDPS Act comes into play and the burden shifts on the appellant-accused to prove that he was not in conscious possession of the contraband. Section 35 of the NDPS Act reads as under:-

35. Presumption of culpable mental state.--(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation.--In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.

Explanation to sub-section (1) of Section 35 expanding the meaning of ''culpable mental state' provides that ''culpable mental state' includes intention, knowledge of a fact and believing or reason to believe a fact. Sub-section (2) of Section 35 provides that for the purpose of Section 35, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of the probability. Once the possession of the contraband by the accused has been established, it is for the accused to discharge the onus of proof that he was not in conscious possession. Burden of proof cast on the accused under Section 35 of the NDPS Act can be discharged through different modes. One of such modes is that the accused can rely on the materials available in the prosecution case raising doubts about the prosecution case. The accused may also adduce other evidence when he is called upon to enter on his defence. If the circumstances appearing in the prosecution case give reasonable assurance to the Court that the accused could not have had the knowledge of the required intention, the burden cast on him under Section 35 of the NDPS Act would stand discharged even if the accused had not adduced any other evidence of his own when he is called upon to enter on his defence."

In Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, AIR 2000 SC 821, the Hon'ble Apex Court has clearly observed that where an accused admits that narcotic drugs were recovered from bags that were found in his possession at the time of his apprehension, in terms of Section 35 of NDPS Act the burden of proof is then upon him to prove that he had no knowledge that the bags contained such a substance.

The testimony of DW1 has not been relied upon by the learned trial court in view of the fact that the prosecution had successfully proved its case beyond reasonable doubt against the accused persons. According to the statement of DW1 himself, the appellant Laxmi Kant had left his place in the morning of next day i.e. 14.9.2009. The applicant has been arrested on 14.9.2009 at 12.00 noon. Therefore it cannot be said that he was not present at the place of occurrence at that time. Moreover, DW1 is a close relative of the appellants, whereas all the prosecution witnesses are independent witnesses.

In so far the complicity of appellant Sanjay Pandey (in Criminal Appeal No. 1286 of 2011) is concerned, although he has taken the plea that he had no concern with the alleged Charas and nothing objectionable was recovered from his possession and he was only driving the motorcycle, however, this court does not find any substance in his submissions for the reason that he has been arrested while driving the same motorcycle on which Laxmi Kant Gupta @ Mangru Gupta (the appellant in Criminal Appeal No. 5641 of 2011) was travelling as a pillion rider from whose possession 12 Kg of Charas was recovered. Both the appellants have been arrested at Nepal Border and both were coming from Nepal. The evidence available on record clearly shows that seeing the police, the appellant Sanjay Pandey, who was driving the motorcycle, turned around his motorcycle and tried to escape. However, the police surrounded them from all sides and they could be arrested with great efforts. If the appellant Sanjay Pandey had no knowledge that co-accused Laxmi Kant Gupta, who was sitting behind him on the motorcycle, had Charas in the bag he was carrying, what was the reason that seeing the police the appellant Sanjay Pandey turned around his motorcycle and tried to escape. It is a matter of common knowledge that when two people travel on a motorcycle the bag is always carried by the person sitting as pillion rider and the driver of the motorcycle has to keep his hands free to drive the motorcycle. There does not appear any good ground to deviate from the view taken by the learned trial court.

Considering all the facts and circumstances of the present case in wake of the law laid down by the Hon'ble Apex Court in various judgments cited above, this appeal appears to be without any merit and is liable to be dismissed.

Accordingly both the appeals are dismissed.

Appellant Laxmikant is in jail. He shall remain in jail and serve out his remaining sentence.

Appellant Sanjay Pandey is on bail. In view the fact that his conviction has been affirmed by this court by dismissing his appeal, his bail is cancelled and the sureties are discharged. He be taken into custody forthwith.

A copy of this order be sent by FAX to the court concerned, which is directed to take immediate follow up steps so as to ensure that the sentence awarded is served out by the accused-appellants.

Let the record be sent back to the trial court along with a copy of this judgment.

Order Date :-20.12.2017

T.S./Pcl