Hariom Dheemar vs State Of U.P.
2017 Latest Caselaw 6803 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved 	
 
A.F.R.
 
		
 
Case :- CRIMINAL APPEAL No. - 3343 of 2013
 
Appellant :- Hariom Dheemar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ali Hasan,Ashish Pandey,Deepak Kumar Singh,Santosh Kumar Dubey,Vijay Singh Gour,Vikash Chandra Tiwari
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Mrs. Vijay Lakshmi,J.

This appeal has been preferred against the judgment and order dated 27.05.2013 passed by the Additional Sessions Judge Court No.3, Ghaziabad in Sessions Trial No. 178 of 2009 (State Versus Hariom Dheemer), arising out of Case Crime No. 416 of 2009, P.S. Modinagar, District Ghaziabad whereby the appellant has been convicted and sentenced under Section 18/20 of N.D.P.S. Act for 10 years R.I. with fine of Rs. 1 lac and in case default of payment of fine, to undergo further imprisonment of one year.

The brief facts in a nutshell are that on 07.06.2009 when a police team headed by S.H.O. Raj Mani Rakesh was patrolling in search of some wanted smugglers and had reached at Kuchesra Chaupal, a secret information was received through a "Mukhbir" that in the vacant plot of Raj Kumar Lala, 4 persons are sitting with illicit heroine, and a party which has come from the Delhi to purchase such heroine, is also with them and they are negotiating about sale and purchase of heroine. Believing on the information given by the secret informer, the police team first tried to take with them some independent witnesses, but as the place was isolated, no one could be available, the police team conducted search of each other to ascertain that they themselves were not carrying any illicit thing before reaching to the plot of Raj Kumar Lala. After reaching the spot, the informer accompanying them, pointed out towards 5 persons, sitting at the plot and stating that they were the same persons, he secretly left the place. Hiding behind the boundary wall, the police team over heard their conversation through which it was confirmed that they were in possession of illicit heroine. The police party raided inside the plot by breaking open the wooden door fixed in the boundary wall. However, by that time, 4 persons out of five became successful in running away from the field. The police team chased the accused persons running from the spot, but without any success. Thus only one person (present appellant) could be apprehended at about 7.20 A.M. by the police. On being inquired, the appellant told that his name is Hariom Dheemer and he has heroine in the bag, he is carrying. S.H.O. asked the appellant for his search before the Magistrate or gazetted officer, but the appellant stated that there is no need to take him before any gazetted officer, and he is ready to be searched by the S.H.O. himself. On his search, 01 Kg. Heroine, kept in a polythene bag, was recovered. Constable Vijay Pal was sent to bring a weighing scale and weighing measure which he brought immediately. When the heroine was weighed, its weight was found 01 kg, out of which, 20 gms, was taken out and sample was prepared. The appellant was appraised about the offences committed by him and was arrested. The arrest memo and seizure memo were prepared, contents therein were read over to all present at the spot and the signatures of appellant and witnesses were taken on it. Copy of the seizure memo was given to the appellant. The appellant on enquiry, told the names of co-accused person, who had run away from the spot. Case was registered against the appellant and three unknown accused persons under Section 18/20 N.D.P.S. Act, at Case Crime No. 416 of 2009. Relevant entries regarding registration of the case were made in the general diary and the investigation of the case was entrusted to Mr. Sudhir Kumar Tyagi (PW-4).

Matter was investigated. The Investigating Officer recorded the statement of the witnesses, inspected the spot, prepared the site plan and on the basis of the evidence collected, submitted charge sheet (Ext. Ka-6) under Section 18/20 of N.D.P.S. Act against the appellant Hariom Dheemer.

Charges under Section 18/20 of N.D.P.S. Act were framed by the learned Additional Sessions Judge, Ghaziabad against the appellant, who denied from the same and claimed his trial.

The prosecution in order to prove its case, produced four witnesses in all.

S.I. Manik Chandra Verma, who was a member of police team has been produced as P.W.1, P.W.2 is Inspector C.B.C.I.D Raj Mani Rakesh, who was posted as S.H.O., P.S. Modi Nagar on the date of occurrence, and who was heading the police team, P.W.3 is S.I. Sanjeev Kumar Chauhan, who was posted as Head Moharrir at P.S. Modi Nagar on the date of occurrence. He has prepared the check F.I.R. (Ext.Ka-3) and has proved relevant entries regarding registration of the case in general diary as (Ext. Ka-4), P.W. 4 is the Investigating Officer of the case.

Apart from the aforesaid oral evidence, the relevant documents; like check F.I.R., recovery memo, written consent of the appellant regarding his search by S.H.O., report of the Vidhi Viggyan Prayogshala, Agra, and copy of the site plan were also produced by the prosecution.

Learned Trial Court, after a detailed discussion of all the oral and documentary evidence, found the appellant guilty and sentenced him accordingly, as here in before mentioned in the earlier part of the judgment.

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

1. The mandatory provisions of the Sections 42, 50 and 57 of the N.D.P.S. Act have not been complied with by the police, therefore, the entire proceedings of the Trial Court have been vitiated and impugned judgment is liable to be set aside.

2. The arresting authority has not informed the appellant about his right to be searched in presence of a gazetted officer.

3. There is delay of 2.30 hours in lodging of the F.I.R.

4. Though it has been stated by the P.W.1 that information was sent through R.T. Set, but it was not recorded in writing, hence there is no compliance of Section 57 of the N.D.P.S. Act.

5. No independent public witnesses has been examined.

6. The police never cared to arrest the four remaining co-accused persons who are said to have absconded from the spot.

7. The prosecution story appears doubtful due to the reason that it has been stated that police could enter inside the vacant plot of Ram Lal after breaking open the wooden door fixed in its boundary wall whereas the police could have easily entered into the vacant plot by jumping over its boundary wall from its right side, the height of which according to the site plan is only 4 fit.

8. There is no cogent evidence available on record to show as to whose seal was affixed on the sample of the heroine and on the remaining heroine because no sample of seal was produced in Court. Hence this important link is missing.

9. Appellant has no criminal antecedent to his credit and he is in jail since 8 years.

On the aforesaid grounds, learned counsel for the appellant has prayed that appeal be allowed and the impugned judgment be set aside.

Per contra the learned A.G.A. has vehemently opposed the arguments advanced by the learned counsel for the appellant on the grounds that all the witnesses produced by the prosecution, are eye witnesses, they have no enmity with the accused/appellant, therefore, there is no reason with them to falsely implicate the appellant. Moreover, the appellant has been arrested on the spot with 01 Kg. heroine which is multiple times higher than its commercial quantity of only 250 gms. Learned A.G.A. has further contended that as the heroine has been recovered from the bag of appellant, which he was carrying, Section 50 of N.D.P.S. Act has no application in this case.

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

Having heard the learned counsel for the parties and on perusal of the record of the case, I find no merit in this appeal.

In my considered opinion, the court below has rightly held that the prosecution has been able to prove its case against the Appellant beyond reasonable doubt and that the evidence adduced by the prosecution is sufficient to warrant the appellant's conviction. It is also evident that all the requirements of relevant Sections, which had application to the present case, were complied with at the time of search of the appellant thereby leaving no infirmity of any nature in their compliance.

In so far as the compliance of Section 50 of N.D.P.S. Act is concerned, the evidence available on record clearly shows that the search of the appellant has been made after giving him an offer to have his search conducted by some gazetted officer and it was only after taking his written consent that the search has been made. It is also evident that 01 Kilogram of heroine, which is of commercial quantity as per the schedule appended to the NDPS Act was found in the bag, the appellant was carrying with him.

The evidence also shows that the place of occurrence was vacant plot and the time of recovery was early morning i.e. 6.10 A.M. Hence the statement of prosecution witnesses that attempt was made by the police team to take some public witness with them but due to non availability of any such person, the police team had to take search of appellant after taking search among themselves, inspire confidence.

As per the well settled legal position, the provisions the provisions of Section 50 of the Act do not apply to any search or seizure where the article was not being carried on the person of the accused (State of Rajasthan Vs. Tara Singh; (2011) 11 SCC 559).

In Yasihey Yobin v. Department of Customs; (2014) 13 SCC 344 the Hon'ble Apex Court has reiterated that Section 50 is not attracted when there is no inextricable communication between search of a person and packet. According to the Hon'ble Apex Court the words 'any person' used in Section 50 of the Act naturally mean a human being or living individual unit and not an artificial person. It would not bring within its ambit any packets, containers, briefcase or any such other article which can be given a separate name and are identifiable as such and they cannot even remotely to be treated to be a body part of human being.

In Jarnail Singh Vs. State of Punjab; AIR 2011 SC 964, the Hon'ble Apex court has held:

".........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......."

In so far as the compliance of Sections 42 and 57 of N.D.P.S. Act is concerned, the court below has rightly held that this has been complied which is evident from the statement of PW-2 Raj Mani Rakesh, who is the first informant of the case and who has categorically stated that the information had been given to higher officials through R.T. Set.

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."

In the present case there is sufficient reliable evidence to prove that the information to his 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 Sections 42 and 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 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."

Statement of P.W.2 also shows that during his testimony, recovered heroine was produced in the Court in sealed condition, which was opened before the Court and was duly proved by the witness.

Perusal of the aforesaid statement of P.W.-2 who was heading the police team on the date of occurrence, clearly shows that there was no tampering either in the packing or in the seal. The relevant part of statement of P.W. 2 is reproduced hereinbelow :-

"vfHk;qDr ls cjken eky vkt UI;k;ky; esa esjs lkeus gSA tks U;k;ky; ds vkns'k ls [kksyk x;kA eky dh iUuh ij oLrq izn'kZ&1 Mkyk x;k rFkk mlds vUnj lQsn diM+s ij oLrq izn'kZ&2 rFkk eky ij oLrq izn'kZ 3 Mkyk x;k rFkk ijh{k.k gsrq Hksts x;s eky ds uewuk ds diM+s ij oLrq izn'kZ&4 o mlesa ls fudys fiUuh ij oLrq izn'kZ&5 Mkyk x;k rFkk eky ij oLrq izn'kZ&6 Mkyk x;kA"

A perusal of the statement of P.W.2 S.I. Raj Mani Rakesh also shows that the reasons to break open the wooden door, was that boundary wall of the vacant plot was 7 or 8 ft. height from two sides and 4 or 5 ft; height from two sides. The height of the boundary wall where the police team was standing, was about 7 or 8 fit. Therefore, the wooden door fixed on it was to be broken by the police team in order to enter the plot.

There is no material contradiction or its discrepancy in the statement of the witnesses to make it unworthy of credit and the statement of the prosecution witnesses as a whole inspire the confidence.

All the prosecution witnesses have been cross examined at length by his learned counsel before the Trial Court, but nothing has been elicited during of their cross examination to cast a shadow of doubt on their testimony.

Moreover, the appellant in his statement recorded under Section 313 Cr. P.C., has not stated anything as to why he was falsely implicated in this case by the Police?. Except a general denial and evasive answers to all the questions put to him, he has said nothing. He has not given any defense evidence in proof of his false implication.

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."

In view of the aforesaid discussion and in wake of law laid down by the Hon'ble Apex Court, as cited above, there does not appear any illegality or irregularity in the impugned judgment. The appeal lacks merit and is liable to be dismissed.

Accordingly, The appeal is dismissed.

Copy of the judgment and order along with lower Court's record be immediately sent back to the Lower Court. Certified copy of the judgment be provided to learned counsel for the appellant by the office without any delay as per rules.

Order Date :- November 14, 2017.

T.S./S.B.