Santosh Kumar Gupta vs State Of U.P.
2017 Latest Caselaw 2548 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
A.F.R. 
 
Reserved On 24.03.2017
 
Delivered On  20.07.2017
 

 

 
Case:- CRIMINAL APPEAL NO. 3920 OF 2016
 
Appellant:- Santosh Kumar Gupta
 
Respondent:- State of U.P.
 
Counsel for Appellant:- Prashant Kumar, Ashwini Kumar Ojha
 
Counsel for Respondent:- G.A.
 

 
Hon'ble Harsh Kumar, J.

This appeal has been preferred against the judgment and order dated 16.07.2016 passed by the Additional Sessions Judge/Special Judge E.C. Act, District Jhansi in Special Sessions Trial No. 93 of 2014 State Vs. Santosh Kumar Gupta, convicting the accused-appellant for the offence under section 20 N.D.P.S. Act and sentencing him with rigorous imprisonment for a period of ten years and fine of Rs. One lakh and in case of default in payment of fine with additional period of imprisonment for a period of one year.

As per F.I.R., the brief facts relating to the case are, that "on 01.09.2014, first informant Sub Inspector Arvind Singh, during patrolling with constables got information that a person is selling prohibited contraband in Mohalla Khanderao Gate near Shankar Ji Tample upon which after informing Circle Officer on phone, who also arrived at the spot, he apprehended a person and made search of him in accordance with Section 50 of N.D.P.S. Act, who disclosed his name Santosh Kumar Gupta and 7 plates of Charas wrapped in polythene with 11 paper sachets were recovered from a polythene in his right hand, with recovery of a sum of Rs. 450/- from right hand pocket of his pant and upon weighing, the weight of all plates and sachets of Charas was found to be 2 Kg., upon which he was taken into custody in accordance with rules." Upon investigation the charge-sheet was submitted and charges under section 20 of N.D.P.S. Act were framed against accused-appellant, from which he denied and demanded trial.

In order to prove the charges against the accused-appellant the prosecution produced as many as 5 witnesses and after examination of 1 court witness, the statement of accused was recorded under section 313 Cr.P.C. After affording the appellant an opportunity of defence evidence and hearing the arguments of learned counsel for the parties, learned Additional Sessions Judge/ Special Judge found the sole accused-appellant to be guilty and convicted him for the offence under section 20 of N.D.P.S. Act and sentenced him accordingly as mentioned above.

Feeling aggrieved, the sole accused-appellant has preferred this appeal.

Heard Shri Ashwini Kumar Ojha and Shri Prashant Kumar learned counsel for the appellant and Shri Sanjay Kumar Advocate, learned standing counsel for Narcotics Bureau and learned A.G.A. for the State, and perused the record.

Learned counsel for the appellant contended that the impugned judgment and order of conviction are wrong, incorrect and illegal; that the conviction and sentence are against the evidence on record; that the prosecution failed to prove its case beyond reasonable doubts; that there are material contradictions in the statements of witnesses, which make them untrustworthy and unreliable; that the learned trial court acted wrongly, illegally and arbitrarily in relying on the false and untrustworthy evidence of the prosecution; that it was proved from the evidence on record that no search of appellant was ever made in accordance with the provisions of Section 50 of N.D.P.S. Act and that the recovery of prohibited contraband Charas was falsely planted upon him, after picking him from home; that the appellant was not found involved in sale of prohibited contraband (Charas) at Mohalla Khanderao Gate near Shankar Ji Tample and nothing incriminating was recovered from his possession; that there is no independent witness of alleged recovery; that no sample of the allegedly recovered material was taken in accordance with rules, from each of the allegedly recovered plates and sachets and the evidence on record shows that alleged sample was not sent for chemical analyzation in accordance with law; that it was proved from the prosecution evidence and report of forensic lab on record that the seal over the sample was tampered and so also the prosecution has failed to establish that the same material which was allegedly recovered from appellant, was sent for chemical analyzation to forensic lab and consequently the report of Vidhi Vigyan Prayogshala is not admissible in evidence; that the appellant has been falsely implicated by falsely planting recovery of prohibited contraband on him in order to put undue pressure on him for getting it vacated the house in Jhansi city in which his mother-in-law was residing on rent; that the impugned judgment and order of conviction and sentence are liable to be set aside and by allowing the appeal, the appellant is entitled for an order of acquittal.

Per contra, learned A.G.A. with special assistance of Shri Sanjay Kumar Singh Advocate, learned standing counsel for Narcotics Bureau supported the impugned judgment and order and contended that the prosecution has successfully proved the charges against appellant beyond reasonable doubt; that the proceedings of search and sampling etc. were completed in accordance with law in presence of a gazetted officer, the Circle Officer and there is nothing to show any tampering with the sample of recovered material; that there was no irregularity in taking sample and no inordinate delay in sending the sample for chemical analyzation; that the appeal has been filed with false and incorrect allegations and is liable to be dismissed.

Upon hearing the learned counsel for the parties and perusal of record as well as the record of court below (of Special Sessions Trial No. 93 of 2014 State Vs. Santosh Kumar Gupta summoned in this appeal), I find that as per F.I.R./ Recovery Memo, on 01.09.2014, the first informant Sub Inspector Arvind Singh was on patrolling duty alongwith Constables Ajay Yadav and Vipin Singh Chauhan and when they reached near Pachkuiyan Tiraha an informer conveyed him that a person is selling narcotic drugs in huge quantity near the Shankar Ji Tample at Kila in Khanderao Gate, upon which after giving information to Circle Officer on telephone and requesting him to come at the spot, he reached near Shankar Ji Temple and caught the person alongwith a polythene in his right hand at about 15:45, by which time Circle Officer Kalyan Singh Yadav had arrived with force. It was further contended in the F.I.R. that the search of the accused was taken in accordance with the provisions of Section 50 of N.D.P.S. Act, who disclosed his name as Santosh Kumar Gupta and upon search a yellow polythene was recovered from his right hand containing 7 plates of Charas wrapped in a polythene and 11 paper sachets of Charas, apart from recovery of Rs. 450/- from right hand pocket of his pant, and upon weighing the total weight of plates and sachets was found to be 2 Kg., and after taking out a sample of 50 gms. Charas and sealing it in a piece of cloth, the rest 7 plates and 8 sachets of Charas were sealed separately with Rs. 450/- in another piece of cloth, in presence of the Circle Officer, and nobody came forward for becoming witness.

It is pertinent to mention that the sample of recovered material is alleged to have been sent for chemical analyzation to Forensic Lab Agra with a delay of 12 days, which in my opinion, is not very much material.

For the purpose of considering the correctness of the impugned judgment and order of correction, I have gone through the evidence on record and deem it expedient in the interest of justice to discuss relevant parts of the statements of PW-1 the first informant and PW-5 the Investigation Officer which are on the basis of prosecution evidence, as under:-

Prosecution witness PW-1, the first informant S.I. Arvind Singh in his statement on oath has stated at page 2 that "out of the recovered material of 7 plates and 11 sachets, a sample of 50 gms. was taken out and sealed in a piece of cloth, while the rest 7 plates and 8 sachets of Charas were sealed separately in another piece of cloth." At page 6 of his statement he has stated that "he do not remember as to whether the accused was keeping the polythene containing Charas on the platform on his right or left, and even do not remember as to whether he picked the polythene from right platform or left platform" at page 7 he has stated that "the weight was taken with measurements of weight of the denomination of 1kg, 1/2kg, 200gms., 100gms. and 50 gms. and that the 7 plates were carrying a weight of 1750 gms. and the 11 sachets were of 250 gms. total 2kg. and that the weight of the paper sachets was not taken separately rather weight of all of them was taken collectively." He has also stated that "he had taken sample from all the plates and sachets but the fact of sample having been taken from all plates and sachets, does not find place in the recovery memo." He has also stated "that he had put the seal of his name Arvind Singh on the bundle of sample as well as rest recovered material." At page 8 he has admitted that "the recovered material produced before the Court in the form of 7 plates (marked as material exhibit 1 to 7) is wrapped in sealed polythene cover and does not show as if any quantity was ever taken out from these plates [for Sample] and that it is wrong to say that no material was taken from the rest 8 paper sachets produced before the court."

PW-5 the Investigating Officer in his statement at page 2 has stated that "upon being asked the first informant had told him that out of the recovered 7 plates and 11 sachets, 7 plates and 8 sachets were sealed and about rest sachets, he told that those were taken for sample, and that after taking 3 sachets for sample, rest Charas was separately sealed as it is."

As per report of the Vidhi Vigyan Prayogshala, Agra the sample recovered in lab was weighing 49 gms. in paper within polythene and was found to be Charas and that the sealed packet was bearing the seal of (VY .VIVEK YADAV SI .UPP मुद्रा नमूनानुसार).

Upon hearing the parties counsel and considering the arguments, I feel it appropriate to discuss prosecution case on following points which have been raised in this appeal in the light of evidence on record.

(i) Compliance of Section 50 of N.D.P.S. Act: Section 50 of N.D.P.S. Act requires that when an officer duly authorized, is about to search any person, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the department mentioned in section 42 or to the nearest Magistrate. The F.I.R./recovery memo on record does not state that the accused was made aware of his right to be searched before some Gazetted Officer or the Magistrate as mentioned above and is not alleged to have given any consent for being searched by the first informant Arvind Singh himself. As far as the calling of Circle Officer by the first informant is concerned, the recovery memo states that upon getting information the Circle Officer was called and he accompanied the first informant Arvind Singh as member of raiding party and the search was taken in his presence in accordance with the provisions of Section 50 of N.D.P.S. Act. Learned counsel for the appellant has contended that since the Circle Officer was a member to the raiding party, his presence does not dispense with prosecution from making compliance of mandatory provisions of section 50 of N.D.P.S. Act.

Apart from above, the recovery memo states that during search a yellow polythene containing 7 plates and 11 sachets of Charas was recovered from the right hand of the accused apart from recovery of Rs. 450/- from right hand pocket of his pant.

Learned counsel for the respondent contended that since the prohibited contraband Charas has been recovered from a polythene bag and not from the person of accused so the provisions of Section 50 of N.D.P.S. Act are not attracted in this case. On the other hand, the learned counsel for the appellant has paid reliance on the judgment of Apex Court in 2009(2) J.I.C. 202 (SC): A.I.R. 2010 (SC) 1785 Union of India Vs. Shah Alam in which case ''heroine' was recovered from a bag carried by accused and personal search was also conducted but nothing was recovered from personal search, and the Apex Court held that "whenever the personal search is conducted, compliance of Section 50 of N.D.P.S. Act is necessary, irrespective of any recovery from that person."

Further in the case of State of Rajasthan Vs. Parmanad and Another 2014 (2) J.I.C. 136 (SC) in a case where search of bag carried out by the person as well as search of person both were conducted, and the Apex Court held that "the provisions of Section 50 of N.D.P.S. Act are applicable."

In view of the discussions made above, I found that the argument of the respondent that in view of law laid down in the case of State of Himachal Pradesh Vs. Pawan Kumar 2005 (52) A.C.C. 710 the provisions of Section 50 are not attracted has no force and the prosecution has failed to comply with the mandatory provisions of Section 50 of N.D.P.S. Act.

(ii) Recovery:-

It is pertinent to mention that the F.I.R./recovery memo states that during search a yellow polythene containing 7 plates and 11 paper sachets was recovered from the right hand of the accused but the first informant in his statement on oath as PW-1 (Page-6) has stated that "मुखबिर ने जब मुल्जिम की ओर इशारा करके बताया कि वह व्यक्ति जो पीली पॉलिथीन में चरस रखे बैठा है वही चरस बेच रहा है। उस समय अभियुक्त चरस की पॉलिथीन अपने दाएं या बाएं चबूतरे पर रखा था मुझे ध्यान नहीं। सबसे पहले अभियुक्त को मैंने पकड़ा था। पॉलिथीन भी मैंने ही उठाई थी। यह भी याद नहीं कि मैंने उसके दाएं ओर के चबूतरे पर से या उसके बाएं ओर के चबूतरे से उठाई थी।"

In contradiction to above PW-3 the Circle Officer has stated that "the polythene was recovered from the right hand of the accused, whereas PW-5 the Investigating Officer has stated that first informant had told him that "जो व्यक्ति पीले कलर की पॉलिथीन में सामान रखे बैठा है वही चरस बेच रहा है।"

From the above evidence on record, it appears that the alleged yellow coloured polythene containing 7 plates and 11 sachets of Charas was picked by the first informant S.I. Arvind Singh from the platform and does not appear to have been recovered from the right hand of accused-appellant in his personal search as mentioned in recovery memo. There is nothing on record to show that the accused-appellant was holding the polythene bag in his right or left hand. It is also not disputed that there is no independent witness of recovery.

In view of above material contradictions in the averments mentioned in recovery memo and the statements of prosecution witness, the very recovery of prohibited contraband from accused appellant becomes doubtful and the prosecution has failed to prove such recovery beyond reasonable doubt.

(iii) Sample:- It has been contended by appellant that neither the sample of the allegedly recovered material was taken in accordance with rules nor it was immediately sent for chemical analyzation in accordance with the rules. The allegedly taken sample is said to have been sent for chemical analyzation after inordinate delay of 12 days, but I do not find that such delay may be considered to be fatal to the prosecution case. PW-1 the first informant S.I. Arvind Singh has stated that he had taken sample from each of the 7 plates and 11 sachets total 50 gms. but this fact has not been mentioned in recovery memo. He has admitted that he did not weigh each sachet separately. He has also stated that out of the recovered material after taking sample, "rest 7 plates and 8 sachets were sealed separately in another cloth" which indicates that out of the allegedly recovered material, 7 plates and 11 sachets no sample was taken from any of each plate and each sachet, rather without taking any material from the 7 plates and 8 sachets, they were sealed separately, and only 3 sachets were sealed as sample. The PW-3, Circle Officer has stated in his cross examination that sample was taken from all the 7 plates and 11 sachets but he does not remember as to how much pieces were taken for sample. It is also noteworthy that the bundle received after chemical analyzation when opened before him in the court, he admitted that it does not contain 18 pieces rather contains only 2 pieces.

It is pertinent to mention that if according to the first informant and Circle Officer sample was taken from each of the 7 plates and 11 sachets, there ought to have been (7+11) total 18 pieces of ''Charas' one each from 7 plates and one each from 11 sachets. PW-1 the first informant has admitted at page 8 of his statement on oath that " यह सही है कि न्यायालय के समक्ष प्रस्तुत सात प्लेट चरस वस्तुप्रदर्श -1 लगायात7 प्लास्टिक के रैपर में बंद व चिपकी हुई हैं। इन्हें देखकर नहीं बताया जा सकता है कि इसमें से कोई चरस निकाली गयी हो।"

The above evidence on record shows that sample was not taken from each of the 7 plates and 11 sachets, rather only 3 sachets were treated and sealed as sample, which may not represent the entire quantity of material allegedly recovered from the accused-appellants, and on the basis of the chemical analyzation report with a finding of Charas therein, it may not be contended that the accused-appellant was carrying commercial quantity of Charas weighing 2 Kgs. rather at the most he may be considered to be having only 49 gms. of Charas as mentioned in Forensic Lab Report, if otherwise proved to be so. But in view of change of seal this too may not be treated have been proved. It is also pertinent to mention that in case of sample having been taken from each of the 7 plates and 11 sachets, such bundle of sample sealed in separate paper and cloth would have contained 18 pieces and similarly the remaining quantity of all the 7 plates and 11 sachets in total 18 parts would have been sealed and not 7 plates and 8 sachets total 15 only.

In view of discussions made above the prosecution has also failed to prove that the sample from the allegedly recovered material was taken in accordance with law or the forensic lab report correspond to the alleged recovery.

(iv) Seal:- The recovery memo states that the first informant sealed the bundle of sample and the remaining material in separate cloths and put the "seal" of his name "Arvind Singh" over each bundle. This fact has been reiterated by first informant in his statement on oath as PW-1 at page 7 by stating that "मैंने अपने नाम अरविन्द सिंह की सील मोहर से सील किया था।" However the Forensic Lab Report of 'Vidhi Vigyan Prayogshala, Agra Uttar Pradesh' relied by prosecution states, that sample received in bundle of cloth was found marked with seal of (VY .VIVEK YADAV SI .UPP). The prosecution has failed to give any explanation regarding the difference of seal on the bundle of sample, which was analyzed at Forensic Lab and has failed to give any explanation regarding change of seal. Undisputedly Vivek Yadav, is not alleged to be member of raiding party and so the bundle received by Forensic Lab bearing seal of VY. VIVEK YADAV SI .UPP may not be treated to be the same bundle over which S.I. Arvind Singh had put his seal, as mentioned in the recovery memo. The absence of any satisfactory explanation with regard to change of seal from 'Arvind Singh' to 'VY. VIVEK YADAV' makes the entire prosecution case doubtful and brings entire prosecution case under suspicion. From the above change of seal, apart from the fact that prosecution has failed to prove that sample was taken in

accordance with the rules from each of the 7 plates and 11 sachets, prosecution has also failed to prove that same sample which taken on the spot and allegedly sealed with the seal of the name of Arvind Singh S.I. was ever sent for chemical analyzation.

In the circumstances possibility of tampering with recovered material or otherwise sending some other material for chemical analyzation may not be ruled out and the chemical analyzation report may not represent the alleged recovery. The prosecution has failed to prove that the sample of same material, which was allegedly recovered from the accused-appellant, was sent to Forensic Lab and was found to be Charas and to accused-appellant may not be held guilty of possessing even 49 gms. of Charas, as found by Forensic Lab.

In the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat 2011 (1) SCC 609, the Five Judges Bench of Apex Court has held that:

"Insertion of sub-section 5 and 6 to Section 50 of N.D.P.S. Act does not obliterate mandate of Section 50 (1) to inform the suspect of his right to be taken before gazetted officer or Magistrate.

Concept of "substantial compliance" is not applicable to Section 50- however, information may be given either orally or in writing.

Failure to comply with Section 50 would (1) cause prejudice to accused (2) render recovery of illicit article suspect, and (3) vitiate conviction if the same is recorded only on the basis of recovery of such illicit article."

In view of the above discussions and the various material contradictions and discrepancies in prosecution evidence, I find that the trial court has failed to correctly analize the evidence on record and has acted wrongly and illegally in relying on the prosecution evidence without considering it in correct perspective and has also acted wrongly and illegally in holding the accused-appellant to be guilty for carrying on prohibited contraband Charas in commercial quantity. The learned trial court has also acted wrongly in holding that the accused-appellant has failed to prove any motive of the prosecution behind his false implication. It is pertinent to mention that the accused-appellant has denied the recovery of any prohibited contraband from him and has stated in his statement under section 313 Cr.P.C. that his mother-in-law was residing on rent in a house in the city of Jhansi and for getting it vacated, and putting undue pressure on him, he has been falsely implicated in connivance with the local police after picking him, two days before the date of alleged arrest, by planting false recovery of prohibited contraband.

It is also pertinent to mention that the burden to prove motive behind false prosecution may not be placed on the accused-appellant. As per settled principle of law "the motive remains behind each crime and prosecution is required to prove the motive behind the crime but since the motive remains in the mind of the accused it has been held in number of cases that the prosecution is not bound to prove the motive behind the crime and for not proving the motive, the case of prosecution may not be thrown out, particularly in cases based on ocular evidence. While the prosecution is not bound for strict proof of the motive, behind the crime, how the accused may be burdened to prove the motive of police party behind his false implication and mere contention of accused about probable cause for false implication may be enough, if prosecution otherwise fails to prove its case.

In view of the discussions made above, I have come to the conclusion that the prosecution has failed to prove that any prohibited contraband in commercial quantity or otherwise was recovered from the accused-appellant or any sample was taken from the allegedly recovered material in accordance with rules or seal of the alleged bundle of sample was kept intact or was ever sent for chemical analyzation or the material therein was found to be Charas. The prosecution has failed to prove the charges against accused-appellant beyond the reasonable doubt and the impugned judgment and order convicting and sentencing the accused-appellant is wrong and incorrect and is liable to be set aside and the appellant is liable to be held not guilty and is liable to be acquitted. The appeal is liable to be allowed accordingly.

Appeal is allowed. The impugned judgment and order of conviction and sentence is set aside. The accused-appellant Santosh Kumar Gupta is held not guilty and is acquitted of the charges leveled against him. The accused-appellant shall be released forthwith if not wanted in any other case.

Let the lower court record be transmitted forthwith to the court below alongwith a copy of judgment, for ascertaining necessary compliance, with the direction that the record of trial court shall not be weeded out till final disposal of appeal if any, preferred before the Apex Court.

Special thanks to Shri Sanjay Kumar Advocate, learned standing counsel for Narcotics Bureau who provided great assistance to the Court.

Date:- 20-07-2017

Sharad/-

(Harsh Kumar,J.)