Sardar Balwant Singh vs State Of U.P.
2017 Latest Caselaw 2550 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 

 
Reserved on 30.06.2017.
 
Delivered on 20.07.2017.
 

 
Case :- CRIMINAL APPEAL No. - 1611 of 2011
 

 
Appellant :- Sardar Balwant Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Jail Appeal,Rehan Ahmad Siddiqui
 
Counsel for Respondent :- G.A.
 

 
Special Sessions Trial No.57 of 2001, Case Crime No.201 of 2004, under Section 8/15, Narcotic Drugs and Psychotropic Substance Act, Police Station Pihani, District Hardoi.
 

 
Hon'ble Satya Narain Agnihotri,J.

1. Feeling aggrieved with the impugned judgment and order dated 9.8.2011 passed by learned Sessions Judge, Court No.9, Hardoi, whereby learned Sessions Judge held guilty to the appellant accused under Section 8 and 15 of the Narcotic Drugs and Psychotropic Substance Act (for brevity N.D.P.S. Act) and punished him with 10 years rigorous imprisonment and fine of Rs.1,00,000/- and in default of payment of fine to serve additional two years imprisonment, the accused appellant filed this appeal.

2. The facts of the prosecution case may be summarized as under:-

P.W.-1 Sri Kripa Shanker Dixit, Sub-Inspector, Station Officer of Police Station Pihani, Hardoi lodged a first information report against the appellant accused stating therein that on 26.7.2004 when he along with other police officials, was busy in search of culprits of other crimes at about 5.00 A.M. and when he was at Barbar Tiraha, he met with Incharge of Outpost Jahani Kheda who informed that the informer intimated him that one person is seated on the highway under the Seesam tree with few sacks in which he has husk of poppy. Relying on the information, complainant himself along with Incharge of Outpost and other police officials reached at the place informed by the informer where he found that one person is seated with sacks which are five in number. On interrogation he told his name Balwant Singh and also his address. Upon enquiry about the sacks it was informed by the appellant that in all these sacks there was husk of poppy. Weight of each sack was about 40 kilograms. After receiving these informations from the appellant accused, it was informed to him by the police party that your search would be done by the Magistrate or a Gazetted Officer. The appellant requested to be searched by present police party and executed a consent letter on which he made his signature with complainant. The seal of the sacks was open by the appellant accused and it was ascertained that the material which was inside the sacks was husk of poppy. Whereupon the accused appellant was taken into formal custody and recovery memo was prepared by the Head Constable Sri Shiv Naresh Singh under the dictation of complainant Sri Kripa Shanker Dixit. Thereafter accused appellant along with recovered sacks brought at the police station Pihani and formal first information report was lodged.

3. The matter was investigated by Sri Ranvijay Singh P.W.-5 and Sri Devendra Singh P.W.-6. After completing investigation P.W.-6 Devendra Singh submitted charge-sheet against the appellant accused which is Exhibit Ka-9 on the record.

4. P.W.-4 Sri Ramesh Kumar Singh, Constable Clerk proved chik F.I.R. Exhibit Ka-5 and General Diary No.14 Time 08.15 hours dated 26.7.2004.

5. To prove the guilt of the appellant accused, prosecution examined P.W.-1 Sri Kripa Shanker Dixit complainant who proved consent letter Exhibit Ka-1 and first information report Exhibit Ka-2, P.W.-2 Shiv Naresh Singh eye witness who proved that F.I.R. Exhibit Ka-2 was scribed by him under the dictation of P.W.-1, P.W.-3 Constable Ramapati Mishra who submitted the sample of poppy husk for chemical examination in the Forensic Science Laboratory, Lucknow and proved the document Exhibit Ka-4, P.W.-4 Constable Ramesh Kumar who recorded formal first information report Exhibit Ka-5 and also proved G.D. Exhibit Ka-6, P.W.5 Sri Ranvijay Singh Sub-Inspector, part investigator, who proved that he started investigation on 26.7.2004, copied the chik F.I.R. and recorded statement of accused. On 31.7.2004 he recorded the statement of complainant Sri Kripa Shanker Dixit, Sri Shiv Chandra Mishra and Sri Anoop Kumar. Later on he inspected the place of incident and prepared site plan Exhibit Ka-7. On 3.8.2004 he transported/carried the entire contraband material recovered from the appellant accused to Court but the sample was not prepared. After that investigation was transferred to P.W.-6 Sri Devendra Singh under the order of concerned Circle Officer. P.W.-6 Sri Devendra Singh, part investigator, deposed on oath that on 20.8.2004 he sent sample of poppy husk for chemical examination at Forensic Science Laboratory, Lucknow under the order of Chief Judicial Magistrate, receipt of which was received by him from constable clerk who handed over the sample to Forensic Science Laboratory, Lucknow and after completion of investigation he submitted charge-sheet Exhibit Ka-9 in the court concerned. The report of Forensic Science Laboratory, Lucknow is on record which is Exhibit Aka-8.

6. Before entering into merits, it would be useful to discuss the summary of evidence of facts, P.W.-1 and P.W.-2.

7. P.W.-1 Sri Kripa Shanker Dixit, Station Officer, Police Station Pihani, District Hardoi, who is complainant, stated on oath that on 26.7.2004 at about 5.00 A.M. when he was near Barbar Tiraha on National Highway, he was informed by the Incharge of Outpost that he has got information from informer that one person is seated under Seesam tree with sacks of poppy husk. Relying upon the information he himself along with Incharge of Outpost Jahani Kheda and other officials reached near the place of incident, where they saw one person seated on the sacks. The complainant along with other police officials raided the place and nabbed accused appellant. Upon enquiry, the accused appellant intimated that all these five sacks were full of poppy husk and the weight of each sack is about 40 kilograms. Receiving information regarding poppy husk sacks were got opened through the accused appellant and the complainant ascertained that material is poppy husk. Thereafter the mouth of sacks was again sealed.

8. P.W.-2 Shiv Naresh Singh is said to be eye witness who stated on oath that on 26.7.2004 he along with Station Officer and Constable Deena Nath Mishra reached Jahani Kheda in search of culprits of another crime, where Chowki Incharge of Jahani Kheda Sri Rajesh Chandra Tripathi, Constable Shiv Chandra Mishra and Constable Anoop Kumar were met on road and they informed that a person is seated at Barbar Tiraha near Seesam tree with 5 sacks of poppy husk. Receiving such information they went at the place informed and found that a person seated there with 5 sacks and upon being asked about the sacks the accused-appellant informed that there is poppy husk in the sacks and weight of each sack is 40 kilograms. This fact was ascertained by Station Officer (complainant). The accused appellant was taken into police custody and was informed that he has right to be searched in presence of Magistrate or Gazetted Officer. The appellant gave his consent to be searched by police party. Later on he was searched by the police according to rules and regulations. Thereafter the sacks were sealed, memo was prepared and accused with poppy husk was lodged in police station Pihani.

9. In his statement under Section 313 Cr.P.C. applicant denied the case of prosecution.

10. Sri Rehan Ahmad, learned Amicus Curie appointed for the appellant, has submitted that in this case the provisions of Section 50 of the N.D.P.S. Act have not been complied with, hence the impugned judgment and order cannot be sustained. Learned Amicus Curie has submitted that prosecution has failed to establish the sample which was analyzed by the chemical examiner, was sample taken from the substance allegedly recovered from the possession of the accused appellant. He has further submitted that a perusal of the record would show that there is overwriting in the case crime number as the figures of the case crime has been altered in consent letter which put the entire prosecution case under suspicion and further the letter of consent is seems to be prepared anywhere else or after arrest of the accused. It is further submitted that alteration has also been done in the chick F.I.R. and whitener is used in it and the name of accused and accused's father has also been overwritten.

11. Learned A.G.A. has opposed the arguments and submitted that the learned Sessions Judge has rightly held guilty to the accused appellant and there is no illegality or infirmity in the judgment, hence appeal be dismissed.

12. I have considered the submissions of the learned counsel for the parties and gone through the record.

13. Opposing the first submission of learned Amicus Curie, learned A.G.A. has submitted that Section 50 of the N.D.P.S. Act is not attracted because the said contraband was recovered from sacks and in case of search of sacks, bag, conveyance etc. the provisions of Section 50 of N.D.P.S. Act are not attracted. Submission of learned A.G.A. has substance.

14. The second submission of learned Amicus Curie is that it is not proved by the prosecution that who and under whose authority extracted and prepared the sample of the alleged recovered contraband. A perusal of the record did not show as to when and in whose presence and under what authority the sample was taken for being sent for chemical examination. Further none of the prosecution witnesses have proved this fact. Although P.W.-5 Sri Ranvijay Singh, part Investigating Officer stated on oath that sample of the recovered contraband was carried away in the court of concerned Magistrate but it was not taken on that date and later on the investigation was transferred to P.W.-6 Sri Devendra Kumar who conducted further investigation. P.W.-6 Sri Devendra Singh, also did not disclose that how he prepared the sample of alleged recovered contraband poppy husk. Thus second submission of the learned Amicus Curie has substance and the prosecution has failed to prove that sample analyzed in the laboratory was taken from the article allegedly recovered from the possession of the accused appellant.

15. Now comes the last submission of learned Amicus Curie. A perusal of the first information report Exhibit Ka-5 clearly goes to show that there is overwriting in the date of occurrence and also there is use of whitener on the name and father's name of the accused appellant. There is no evidence on the record regarding this fact as to who and why made such corrections in the date of case crime and name and father's name of accused appellant. Learned A.G.A. has failed to show any evidence regarding such corrections made in Exhibit Ka-5. Thus the last submission of the learned Amicus Curie also has substance.

16. In the last, learned Amicus Curies has submitted that letter of consent alleged to be prepared under the provisions of Section 50 of N.D.P.S. Act is also not reliable because there is so many infirmities in this very document which is proved by the prosecution as Exhibit Ka-1. There is substance in the said submission of learned Amicus Curie. A perusal of this document shows that crime number and its year has been changed and it is a printed document upon which Kotwali Meerut is also printed. The date of occurrence is also altered and it seems that digit "5" has been overwritten as digit "7". There is no evidence in support of this alternation and correction. Thus the letter of consent which is said to be executed by the accused appellant is not trustworthy and relying this document it cannot be said that free and fair consent was given by the appellant.

17. In view of the foregoing discussions, I am of the view that prosecution has failed to prove its case against the accused-appellant beyond reasonable doubt and the Court below has committed error in convicting and sentencing the accused-appellant. So the impugned judgment and order is not warranted by law and facts on record and the same is liable to be set-aside.

18. In the result, the appeal succeeds and is allowed accordingly. The impugned judgment and order dated 9.8.2011 with regard to accused appellant is hereby set-aside. The accused appellant Sardar Balwant Singh is not found guilty of the charges framed against him and he is acquitted of the charges levelled against him under Sections 8 and 15 of N.D.P.S. Act. So he be set at liberty forthwith if he is not wanted in any other case.

19. Office is directed to communicate this order to the learned Trial Court concerned for compliance at the earliest and to return the Trial Court record along with copy of this judgment. The case property relating to this case shall be disposed of as per Rules.

Order Date :- 20.7.2017

Rakesh/VKG

(S.N. Agnihotri,J.)

Case :- CRIMINAL APPEAL No. - 1611 of 2011

Appellant :- Sardar Balwant Singh

Respondent :- State Of U.P.

Counsel for Appellant :- Jail Appeal,Rehan Ahmad Siddiqui

Counsel for Respondent :- G.A.

Hon'ble Satya Narain Agnihotri,J.

Sri Rehan Ahmad Siddiqui, learned Amicus Curie and learned AGA for the State are present.

Judgment delivered today.

It is submitted by learned Amicus Curie that when he was engaged as Amicus Curie in this case, the Court had not pleased to pass any order regarding his fee and prays that reasonable order may be pass regarding fee.

Considering the facts and circumstances of the case Sri Rehan Ahmad Siddiqui, learned Amicus Curie, is entitled to get Rs.10,000/- as fee.

Learned Senior Registrar is requested to pay the fee accordingly to Sri Rehan Ahmad Siddiqui, learned Amicus Curie in the case.

Order Date :- 20.7.2017

VKG