Arif vs State Of U.P.
2017 Latest Caselaw 6801 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
RESERVED
 
Case :- CRIMINAL APPEAL No. - 3824 of 2013
 
Appellant :- Arif
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ashutosh Pandey,Praveen Kumar Singh,Vishnu Gupta
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

This appeal has been preferred against the judgment and order dated 29.7.2013 passed by the Additional Sessions Judge, Court No. 5, Varanasi, in S.S.T. No. 55 of 2013, State of U.P. Vs. Arif, arising out of Case Crime No. 10 of 2013, u/s 8/21 of the N.D.P.S. Act, P.S. Chowk, District Varanasi, whereby the appellant has been convicted and sentenced with rigorous imprisonment for ten years with fine of Rs. One lakh and in default of payment of fine to undergo a further imprisonment of three years.

Heard Mr. Praveen Kumar Singh, learned counsel for the appellant, and learned AGA Mr. Vinay Shanker Singh representing the State. Perused the record.

The brief facts according to the recovery memo (Ext. Ka2) are that on 21.1.2013 S.I. Vansh Narayan along with S.I. Uday Pratap Pandey and a member of Fantom Squad Constable Rakesh Ranjan Singh was on petrol duty for protection of crime as per normal routine and all of them were going towards Bans Phatak from Chowk, when they saw a young man coming from the front side. Seeing the police he immediately turned back and tried to run away. On suspicion the police team chased him and caught him near Arvind Showroom. On being enquired, he told his name as Arif, son of Idris, resident of Aurangabad, District Varanasi, and confessed that as he has "Alpraquil" pills with him, he was fleeing away from the police. On this, the police team apprised him that he was to be searched before a Gazetted officer and he has a choice either to go to the Gazetted officer or the Gazetted officer be called at the place of occurrence. The accused replied that as he has already confessed his guilt why he should be unnecessarily harassed or why a Gazetted officer be disturbed and he opted to be searched by the police. Then the consent of the accused was taken in his handwriting and he was searched by the police team. Before that the members of the police team conducted search of each other amongst themselves so as to ascertain that none of them had any illicit article with them. The information was given to the higher officers through R.T. set. The police team tried to procure witnesses from the public but no one got ready for it. On search of the accused-appellant 15 strips each containing 60 tablets of Alpraquil of 0.5 mg potency were recovered kept inside the shirt of the accused. He informed that he used to sell these intoxicating tablets to the drug edict persons. The accused after being informed that his aforesaid act is punishable under section 21 of the N.D.P.S. Act and was arrested at 7.00 P.M. The total 900 pills recovered from his possession were weighed with Wrapper at a nearby Jewellery shop and its total weight was found to be 180 gms. The recovered contraband was sealed in the cloth, the sample of the seal was prepared, the recovery memo was read over to the accused-appellant and his signatures were taken on it.

On the basis of the aforesaid recovery memo a criminal case u/s 8/21 of the N.D.P.S. Act was registered against the appellant at Crime No. 10 of 2013 at P.S. Chowk, District Varanasi, and the matter was investigated. The Investigating Officer interrogated the witnesses, recorded their statements, inspected the place of occurrence, prepared the site plan and after concluding the investigation submitted charge sheet against the appellant.

The trial of the case proceeded in the court of Additional Sessions Judge, Court No. 5, Varanasi, where charges were framed against the appellant, who denied from the same and claimed trial.

The prosecution in order to prove its case produced four witnesses in all. PW1 is S.I. Vansh Narayan, who is the first informant, PW2 is S.I. Ramesh Prasad, who is the Investigating Officer of this case, PW3 is constable Rakesh Ranjan, who is the eyewitness of the occurrence and who was a member of the police team at the date and time of occurrence and PW4 is constable Parmanand, who was posted as constable Moharrir, who had prepared the check FIR and had made relevant entries in the General Diary.

After conclusion of the statements of the prosecution witnesses the statement of the appellant was recorded u/s 313 Cr.P.C. in which he denied from the truthfulness of the prosecution case by stating "Galat Hai" in reply to each of the questions put to him. He has stated that sample of the tablets were sent to Forensic Science Laboratory with inordinate delay. He stated that he would give his statement in writing, however, no such statement was given by him in writing.

The learned trial court after a detailed discussion of the entire evidence on record, came to the conclusion that the prosecution has successfully proved its case beyond reasonable doubt. Accordingly, it held the appellant guilty and convicted and sentenced him as aforesaid.

The legality and correctness of the judgment of conviction passed by learned trial court has been challenged by learned counsel for the appellant mainly on the following grounds:-

1. The recovery of the contraband pills from the possession of the appellant is wholly doubtful in this case. The mandatory provisions regarding search and seizure have not been complied with by the police. There is no compliance of section 50 of the N.D.P.S. Act as the appellant has not been apprised of his right to be searched before a Gazetted Office.

2. There is no compliance of section 42 and section 57 of the N.D.P.S. Act as the higher officers have not been informed in writing.

3. The chemical examination report received in this case makes the prosecution story fully unreliable as in the chemical examination report the name of the tablets is mentioned as "Alprazolam Tablets".

4. The weight of the tablets mentioned in chemical analysis report is 108 gms whereas according to recovery memo its weight was 180 gms.

5. All the cases shown as criminal history of the appellant are related to one police station. In all those case the appellant has either been acquitted or is on bail.

Per contra, learned AGA has contended that there is no illegality or irregularity in the impugned judgment requiring any interference by this court and the appeal is liable to be dismissed.

Considered the rival submissions advanced by the parties.

Insofar as the compliance of section 50 of the N.D.P.S. Act is concerned, the Hon'ble Apex Court in the landmark case of State of Punjab Vs. Baldev Singh, (1996)6 SCC 172 decided by a Constitution Bench of the Hon'ble Supreme Court has laid down the law that if the empowered officer, without any prior information as contemplated by section 42 of the Act, makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search a contraband under the NDPS Act is also recovered, the requirement of section 50 of the Act are not attracted.

In the present case there was no prior information with the police team, which was on its routine petrol duty and during normal course of investigation into a suspected offence, the contraband has been recovered from the possession of the applicant. Therefore, in wake of the above cited legal position, section 50 of the NDPS Act is not attracted. Moreover, the recovery memo and the statements of the witnesses clearly show that section 50 of the Act has been complied with by the police team as the appellant was given a choice to be searched before a Gazetted officer or by the police team and when the appellant opted to be searched by the police team and gave his consent in writing to the police, he was searched by the police. Copy of the written consent with signature of the accused is available on the record as Exhibit Ka-1.

In this regard the statement of PW-3, who was one among the members of police team present at the spot is worth seeing:

"idM+s x;s O;fDr ls mlds vf/kdkj dks crk;k x;k fd rqEgkjk vf/kdkj gS fd rqe viuh tkek ryk'kh fdlh jktif=r vf/kdkjh ;k eftLVsªV ds le{k nksxs ;k mUgsa ;gha cqyk;k tk; rks idM+s C;fDr us dgk eq>s dgha ugha tkuk gS vki yksx gh tkek ryk'kh ys yhft,A tfj, vkVhZlsV mPpkf/kdkfj;ksa dks voxr djk;k x;kA eqfYte dh tkek ryk'kh gsrq QnZ jtkeanh fy[kdj lqukdj mldk gLrk{kj cuokdj tkek ryk'kh yh xbZA QnZ jtkeanh tkek ryk'kh ewy :i ls izn'kZ d 1 lkfey fefly gS tks ekSds ij fy[kh x;h FkhA vfHk;qDr dh tkek ryk'kh ls mlds igus 'kVZ ds vanj ck;sa rjQ ls isV ds ikl ls vYizkDohy VScysV dh xksfy;ka ftldh ek=k 0-5 mg Fkh dqy 15 iRrs izR;sd esa 60 VScysV dqy 900 VScysV jSij lfgr cjken gqvkA"

Much emphasis has been laid by the learned counsel for the appellant with regard to discrepancy in the name and weight of the contraband pills as mentioned in the recovery memo and in the chemical analyst report.

I do not find any substance in the aforesaid argument.

A careful perusal of the recovery memo and the chemical analyst report shows that 15 strips of contraband pills each containing 60 tablets, thus total 900 tablets were recovered from the possession of the appellant, the total weight of which along with wrapper was found to be 180 gms, whereas in the report received from Vidhi Vigyan Prayogshala, Ramnagar, Varanasi, it is clearly mentioned that weight of a single pill being 0.12 gm. The total weight of 900 pills was 900 X 0.12 gm= 108 gm. Thus, the reason for the discrepancy between the weight of the pills as mentioned in the recovery memo and as mentioned in the report of analyst is clear due to the fact that their weight was found to be 180 gms with their wrapper and 108 gms without wrapper. The report of F.S.L. also shows that on the wrapper the name of the pills was mentioned as "Alprazolam Tablets IP Alpraquil 0.5 mg". In the recovery memo the name of the pills is mentioned as "Alpraquil". Therefore, it does not make any difference if the contents of the pills i.e. Alprazolam is not mentioned in the recovery memo and this court does not find any discrepancy between the two.

A perusal of the statements of the witnesses shows that all the prosecution witnesses have been cross examined at length by the learned counsel for the accused- appellant but not even a suggestion has been given to any of them about the delay in sending the contraband pills to the F.S.L.

In so far as the compliance of section 42 and 57 of the N.D.P.S. Act is concerned,

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 contest. 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."

In the present case there is sufficient reliable evidence to prove that the information to senior officers was sent by RT set and mobile phone by the informant. Thus, in wake of the above cited judgments of Hon'ble Apex Court, it cannot be said that there was no compliance of Section 42.

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 purpose behind enacting the provisions of Section 42 of N.D.P.S. Act is that the empowered officer receiving information about the contraband liable for seizure is kept or is concealed in any building, conveyance of enclosed place, he should before entering into such place, take down the information in writing and should inform his superior officers about such information within 72 hours."

Thus a bare perusal of the provisions of Section 42, itself clearly shows that it is not applicable in case when the recovery is not made from any enclosed place building or conveyance.

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."

The Hon'ble Supreme Court in the above cited cases, denied to interfere with the order of conviction and sentence awarded to the appellants and dismissed the appeals.

In so far as the compliance of Section 57 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, by a Bench of three Hon'ble Judges while relying on its earlier judgment rendered in Sajan Abraham Vs. State of Kerala (2001)6 SCC 692, 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 bundle of pills recovered from the possession of the appellant was produced before the trial court during trial. Its seal was found intact. The seal was opened by the court and the cloth in which the strips of pills were kept as well as the wrappers containing pills all were marked as material exhibit nos. 1 to 16. On the cloth in which the contraband was sealed the crime number along with the name of the accused was found written by a red sketch pen. Therefore, it cannot be assumed that there was any tampering in the seal affixed to the contraband.

So far as the argument with regard to interestedness of the witnesses is concerned, no doubt all the prosecution witnesses in this case are members of police force, but it is settled law that the statements of police officials are not to be discarded only on this ground alone. In fact, nothing has been put to any of the police witnesses to elicit that he was in anyway personally interested to get the appellant convicted.

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."

In Baldev Singh's case (supra) the Apex Court has observed that :

"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."

The accused has not stated anything in his statement u/s 313 Cr.P.C. as to why he was falsely implicated in this case. He had stated that he would give his statement in writing but nothing was filed in writing by him in his defence. He has only given general and evasive answers to all the questions put to him.

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:

"In his statement under Section 313 Cr.P.C., no plea has been taken that the appellant was not in conscious possession of the contraband. The appellant has only pleaded that he being falsely implicated and that a false case has been foisted against him in the police station. 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."

Learned counsel for the appellant has placed reliance on the following judgments:-

1. Judgment dated 17.12.2015 passed by this court in Criminal Appeal No. 7127 of 2008, Chinku Vs. State of U.P.

2. (2012)5 SCC 226, Myla Venkateswarlu Vs. State of Andhra Pradesh.

3. (2013)1 SCC 550, Suresh and others Vs. State of Madhya Pradesh.

4. (2013) 14 SCC 527, Vijay Jain Vs. State of Madhya Pradesh.

The appellant cannot be given any benefit of the aforesaid judgments because facts of those cases are entirely different from the facts of the present case.

In the above cited case of Baldev Prasad (supra) the Constitution Bench of the Hon'ble Supreme Court after interpreting Article 21 of the Constitution of India has observed as under:

"It is a well-settled proposition of law that a decision is any authority for what it decides and not that everything said therein constitutes a precedent. The courts are obliged to employ an intelligent technique in the use of precedents bearing it in mind that a decision of the court takes its colour from the questions involved in the case in which it was rendered."

The case diary shows that as many as nine cases are mentioned as the criminal history of the appellant, out of which four cases are under the NDPS Act. The drugs recovered from the possession of the appellant is above its commercial quantity as commercial quantity of Alprazolam is 100 gms. According to section 21(c) NDPS Act where the contraband involves its commercial quantity, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine, which shall not be less than one lakh rupees but which may extend to two lakh rupees.

The appellant has been convicted under section 21 of the NDPS Act and he has been awarded the minimum punishment provided under the Act.

Considering the facts and circumstances of the case, there does not appear any illegality or irregularity in the impugned judgment. The appeal is devoid of any merit and is liable to be dismissed. Accordingly, it is dismissed.

The appellant is in jail as his bail application has been rejected by order dated 16.12.2013 passed by this court. He shall remain in jail to serve out the remaining part of the sentence as awarded by the trial court.

A copy of this order along with lower court's record be sent to the court concerned for information and necessary compliance.

Order Date :-14.11.2017

Pcl