Baijil Saliben vs State Of U.P.
2017 Latest Caselaw 7449 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 7.11.2017
 
Delivered on 30.11.2017 
 
Court No. - 13
 
Case :- JAIL APPEAL No. - 29 of 2016
 
Appellant :- Baijil Saliben
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Rakesh Kumar Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Dinesh Kumar Singh-I,J.

1. This appeal has been filed from Jail by the accused-appellant Baijil Saliben against the judgment and order dated 2.11.2015 passed by the Additional District and Sessions Judge, Court No. 7, P.S. GRP, District- Deoria, in Criminal Case No. 22 of 2013 (State of Uttar Pradesh Vs. Baijil Saliben), whereby the accused-appellant has been convicted and punished under Section 8/22 of the NDPS Act with rigorous imprisonment of 10 years, fine of Rs. 1,00,000/- and in default of payment of fine with further rigorous imprisonment of six months.

2. In brief facts of the case are as follows.

3. On 18.7.2013, Shri Baijnath Singh (PW-1), SHO, P.S. GRP Railway Station, Bhatni along with constable Chandrika Prasad was busy in performing his duty of maintaining law and order at Platform No. 1. At that very time, constable Sahdev Dubey (PW-2), constable Vijendra Singh, constable Babu Ram, Constable Dharmendra Nayak and Constable Ajai Kumar (SOG) GRP, Gorakhpur also reached there and were discussing regarding criminals. All of them together were proceeding towards western direction. On the way, an informer told them that two persons were sitting on Railway Platform No. 1 at the western end, who possessed Narcotic powder and could give effect to some offense of administering such drugs/substance to public. Believing this information, the police party departed towards western end of the Platform No. 1 and just before 20 metres from the western end of the platform, the informant indicated them where these two persons were sitting and left the spot. The police party surrounded both these persons and apprehended them at about 8.20 pm. They disclosed their names to be Shamshuddin and Baijil Seliven and further apprised that they had alprazolam Powder which they used to administer to the travelers of train and upon their turning unconscious, they used to take away their belongings. Both the persons were apprised of their right that they could opt to be searched in presence of a Magistrate or a Gazetted Officer. In response, they stated that they have already disclosed about Alprazolam Powder being in their possession, hence, the police party could take their search; they had no intention to be searched before a Magistrate or a Gazetted Officer as they were satisfied with the search to be made by them. Thus after taking their consent in writing (Exhibit Ka-1) and having searched themselves to ensure that they did not have any illegal article with them, took search of Baijil Saliben and recovered Alprazolam powder from the right pocket of his pant wrapped in a newspaper. Constable Chandrika Prasad was sent to bring a weighing machine from nearby township and the recovered contraband substance was weighed separately. The quantity of the Alprazolam powder recovered from Baijil Saliben was found to be 120 grams, for possessing which he could not show any license and tendered apologies for the said act. He was told that he had committed an offense under Section 8/21/22 of NDPS Act and was taken into custody (His arrest memo is Exhibit Ka-3).The recovered contraband substance was separately sealed and sample of seal was prepared. A large number of people had gathered on the spot but none of them was ready to be a witness of the recovery. Recovery memo (Exhibit Ka-2) was prepared on the spot by constable Sahdeo Dubey (PW-2). The recovery memo was read out to the accused and thereafter his signature was obtained thereon and a copy of the same was provided to him. An information to higher authority was sent on the same day which is Exhibit Ka-4. On the basis of recovery memo, Case Crime No. 85 of 2013 under Section 8/21/22 of the NDPS Act was lodged at P.S. G.R.P. Bhatini, District Deoria against accused Baijil Saliben. On 18.7.2013 at 10.30 A.M. Chick FIR was prepared which is Exhibit Ka-5. The entry of the institution of this case was made in G.D. Dated 18.7.2013 at report no. 19 at 10.30 A.M. (Exhibit Ka-6). The investigation was assigned to S.I. Ashok Kumar Jaiswal (PW-3), who prepared the site plan (Exhibit Ka-7) at the instance of the first informant Baijnath Singh (PW-1) and after recording statements of others witnesses namely Sahdev Dubey (PW-2), Ashok Kumar Jaiswal (PW-3), Arvind Kumar (PW-4) and taking into consideration the report of Forensic Science Lab (Exhibit Ka-9), submitted charge sheet against the accused under Sections 8/21/22 of the NDPS Act (Exhibit Ka-8).

4. The charge was framed against the accused on 6.12.2013 under Sections 8/22 of NDPS Act, to which he pleaded not guilty and claimed to be tried.

5. The statement of accused appellant were recorded under Section 313 Cr.P.C., in which he denied entire evidence produced regarding recovery of 120 grams Alprazolam powder from him; the report of FSL was stated by him to be erroneous; he stated that he was falsely implicated; Gorakhpur police had arrested him and he was falsely challaned in the present case. He had gone to Gorakhpur Railway Station to drop his brother. He did not have ticket. The G.R.P. Police was demanding bribe of Rs. 1,000/- which he could not provide and consequently he was falsely implicated in this case.

6. The perusal of the impugned judgment would indicate that before learned court below, from the side of the accused appellant the grounds were taken that the prosecution did not make compliance of Section 42 and Section 50 of NDPS Act. But the learned court found adequate compliance of these Sections to have been made. Prior to the search of accused, he was apprised of his right to be searched before a Magistrate or a Gazetted Officer and upon his giving consent that he was ready to be searched by the police party itself, the search was made by the empowered officer i.e. S.H.O Baijnath Singh (PW-1). The FSL's report was also believed to be trustworthy as the sample of contraband substance recovered was sent within ten days of its recovery to the FSL, which was found to be Alprazolam powder. No material contradiction was found by the learned court below in the statements of the witnesses of fact and ultimately finding the case proved against the accused beyond reasonable doubt, it awarded punishment to the appellant mentioned above.

7. Shri Rakesh Kumar Singh, learned amicus curiae has raised following points in appeal before this Court:-

(a) The recovery memo Exhibit Ka-2 is a photo copy which has not been proved in accordance with established procedure of law by comparing it with the original after placing the original before court at the time of recording statement of PW-1.

(b) There is difference in weight of the Alprazolam powder which was sent to FSL because as per the recovery memo 120 grams Alprazolam powder was recovered from the accused, while it was found to be only 118.10 grams in FSL.

(c) Consent obtained from the accused-appellant in writing as to whether he wanted to be searched in front of a Magistrate or a Gazetted Officer to which he is alleged to have stated that he was ready to be searched by the police party itself, is alleged to have reduced into writing by Sahdeo Dubey (PW-2) but it has not been signatured by PW-2, as his signature is not found on the said consent letter (Exhibit Ka-1).

(d) It is prosecution's case that when he was arrested, he was not beaten but an injury was found on his buttock caused by blunt object, explanation of which has not been given.

(e) The essential evidence collected against the accused-appellant such as he having given consent of not being searched before a Magistrate or a Gazetted Officer etc. have not been put to him while statement under Section 313 Cr.P.C. were recorded, which has caused prejudice to the accused.

(f) No details have been recorded in the recovery memo that weights of which units (Bant) were used for weighing the quantity of contraband substance recovered from the accused. There is discrepancy in the statement of prosecution's witnesses regarding the place from where the weighing machine was taken. From the Statement of PW-2 it is apparent that he was made a witness of this recovery subsequently.

(g) PW-4 Arvind Kumar (I.O.) has admitted that he made entry in case diary about FSL's report on 2.8.2013 after the same having been received. The said report is dated 13.9.2013 which was signed on 22.8.2013. The contraband substance was sent to FSL on 27.7.2013 which was received there on 29.7.2013. Reminder was sent by SSP, Railway Balia on 12.9.2013 that report was not received till then and because of that delay was occurring in the investigation. In such situation, how was it possible for the PW-4 -Arvind Kumar (I.O.) to make entry of receipt of FSL's report in case diary on 2.8.2013. PW-4 has stated that on 12.9.2013, he copied the FSL's report, in which Alprazolam powder was found. It leads to suspicion and its benefit must go to the accused.

(h) In fact accused was arrested in Gorakhpur and was brought to Bhatni where he was falsely implicated in the present case because of this, the above said contradictions have come in prosecution's evidence.

(I) Shri Rakesh Kumar Singh, learned amicus curiae has relied upon the judgment delivered by Hon'ble Supreme Court in Criminal Appeal No. 896 of 1997 (Ouseph Vs. State of Kerala) decided on 31 March, 2004, in which it was found that the contraband recovered from the accused was kept unsealed by the investigating agency from 14.9.1990 to 28.11.1990 i.e. far about two months and it was held that this delay was sufficient to cause prejudice to the accused because it was possible that manipulation could have been made with the said recovered contraband.

(j) Shri Rakesh Kumar Singh, learned amicus curiae has relied upon Criminal Appeal No. 2082 of 1996 (Avtar Singh Vs. State of Punjab) decided by Hon'ble Supreme Court on 18.9.2002 in which it was held that not even a question was asked from the accused that they were persons in possession of poppy husk placed in the vehicle, under Section 313 Cr.P.C. and it was held that object of examination under Section 313 Cr.P.C. was to afford an opportunity to the accused to explain the circumstances appearing in evidence against him. It's non-compliance would cause prejudice to the accused.

(k) Learned Amicus Curiae has also relied upon State of U.P. Vs. Rajendra @ Manni, 2017(2) JIC 808 Allahabad, in paragraph 3 to 5 following is held:-

"Upon hearing learned A.G.A., perusal of record as well as the impugned judgment, I find that in order to prove its case the prosecution has produced witnesses to prove the documentary evidence on record which has been categorically analysed by the trial court in detail. It is apparent from the record that as per prosecution case 50 gms. of the material recovered was sent for chemical analysis in the Forensic Laboratory which was received at Forensic Laboratory and found to be 30.5 gms. in a plastic pack. The prosecution has failed to explain the material difference of quantity between the material sent to and received by Forensic Laboratory. Apart from above, there are other material contradictions in the prosecution evidence and the trial court has also found non-compliance of provisions of Sections 50 & 42 of N.D.P.S. Act.

It is settled principle of law as held by Hon'ble the Supreme court in the case of K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified".

In view of discussions made above, I have come to the conclusion that the learned A.G.A. has failed to show that the learned trial court has not considered any evidence on record or has misread any evidence on record or to show any legal infirmity, incorrectness or perversity in the finding given in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the acquittal order and substituting it with conviction order. The application u/s 378 (3) Cr.P.C. has no force and is liable to be dismissed."

8. Citing above case law, it was argued that due to there being found big difference in the quantity of sample of contraband substance allegedly sent to FSL and the quantity which was found received in FSL, it was considered to be a big lacunae/big discrepancy in the prosecution's case. Hence, the court had found that there was no infirmity in the judgment passed by the lower court acquitting the accused.

9. First of all, point no. 1 is being taken up whereby Shri Rakesh Kumar Singh, learned amicus curiae has raised doubt about the original recovery memo not being produced before court at the time of statement of PW-1 recorded in court. The relevant portion of the statement of PW-1 is as follows:-

(I) Photocopies of the original recovery memo bearing paper no. 4-Ka/1 is in file but the original of it is paper no. 21/13 in the file of State Vs. Shamsuddin. The said report was prepared by Head Constable -Sahdeo Dubey at his dictation in his hand-writing. The signature of accused and the witnesses were taken and it was also signed by him. The photo-copy was compared with the original and has been exhibited as Exhibit Ka-2 which is being attested by him. Therefore, in the light of above statement of PW-1, it is apparent that the original recovery memo which was in file of co-accused, was presented before court and after comparing with the original, the photo-copy of the recovery memo was got proved and was marked as Exhibit Ka-2. Hence, the objection in this regard by the learned Amicus Curiae does not have any force.

10. The next point raised by Shri Rakesh Kumar Singh, learned Amicus Curiae is that, the quantity of Alprazolam powder which was sent to the FSL was 120 grams while when it was received at FSL it was found to be 118.10 grams, hence, it could not be said that it was the same contraband substance which was allegedly recovered from the accused, there being difference in weight. In this regard, the reliance was also placed by him upon Rajendra @ Manni's case (Supra).

11. The facts of the present case are totally different from the facts of the above case, which has been relied upon by Shri Rakesh Kumar Singh, learned Amicus Curiae because in that case there was huge difference found in the quantity which was sent to the FSL and the quantity which was actually received by the lab. The prosecution version in that case was that 50 grams of the recovered material was sent while it was found to be just 30.5 grams but in the present case, it is negligible difference as it is stated that 120 grams Alprazolam powder was sent to FSL for being tested while the FSL found it to be 118.10 grams. Such a negligible difference in weight is possible because of weighing machines and is accordingly ignorable. No dent would be caused to the prosecution's case in view of this difference.

12. The next point raised by Shri Rakesh Kumar Singh, learned Amicus Curiae was that the consent which is alleged to have been taken by police party from the accused that he would not like to be searched in presence of a Magistrate or a Gazetted Officer rather he was ready to be searched by the police party itself, was not signed by Sahdeo Dubey (PW-2) although he has stated to have prepared the same. Sahdeo Dubey (PW-2) has stated that the S.O. Sahab had dictated the memo of consent, memo of arrest, the information sent to the officers and the recovery memo regarding recovery of 260 grams Alprazolam powder, which were prepared by him in his hand writing and were exhibit Ka-1, Ka-2, Ka-3 and Ka-4 respectively. In cross-examination, this witness has stated that he had not signed on recovery memo nor had he signed any other document. After preparing the recovery memo he obtained signature of the accused thereon. Upon perusal of the said consent memo, it is found that it has been signed by some officer on 18.7.2013, and has also been signed by the accused-appellant and it is recorded in this memo that accused was arrested on 18.7.2013 by police party with Aprazolam powder and was apprised about his legal right that he could give his search in presence of a Gazetted Officer or a Magistrate but he had told them that they could take his search and it was not required to call any such officer as he was satisfied with them. Beneath that, signature of some officer appears to have been made although it has not been got clarified in cross-examination by defense as to who had put that signature. The said consent memo not being signed by the person who had prepared the same would not cause prejudice to the accused because it bears the signature of the accused and has also been signed by some officer who was member of raiding party. Had there been no signature of the accused on the said consent memo, doubt could have been raised as to whether the accused had given any such consent. However, it could be pertinent to mention here that there is settled law on this point that it is not necessary for the prosecution to apprise the accused in writing about his right of search before a Magistrate or a Gazetted Officer, for the same can also be apprised him orally and can be proved by adducing evidence in that regard.

13. It would be pertinent to refer to the law laid down in this regard in State of Punjab Vs. Baldev Singh, 1999 SCC 172 the paragraph 25 of which is as follows:-

25. To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a Gazetted Officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with requirements provided in Section 50. No presumption under Section 54 of NDPS Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with."

14. Hence, there is no doubt that there was sufficient compliance made of Section 50 of NDPS Act by apprising the accused of his above right.

15. The next point raised by learned Amicus Curiae is that according to prosecution version no beating was made of the accused-appellant while an injury of hard object has been found on his buttock which suggests that he was beaten by police party. The medical report of the P.S., GRP, Bhatni, District Deoria dated 18.2.2013 contains the fact that accused was medically examined on 18.2.2013 at 1:45 pm and a wound was present on left thumb measuring about 2 cm X 0.5 cm. This injury has been opined to have been caused by some hard and blunt object and its duration is reported to be one day. This injury has not been found to be significant in the report. With what aim the learned Amicus Curiae has highlighted this point, is beyond comprehension. How this would give benefit to the accused is not understandable. This is a very small injury which could be received by falling down on the ground or by any other mode and could also be self-inflicted. No cross-examination has been made by defense on this point. So this injury is not being found of any consequence so as to give benefit to the accused in any manner.

16. The next point raised by Shri Rakesh Kumar Singh, learned Amicus Curiae, is that the accused was not put evidence under section 313 Cr.P.C. that he had given consent by putting his signature on Exhibit Ka-1 (consent memo) and this has certainly caused prejudice to the accused. In this regard, reliance has been placed on Avtar Singh's case (Supra) by Shri Rakesh Kumar Singh, learned Amicus Curiae. In this regard it would be pertinent to mention here that on perusal of the questions put to the accused under Section 313 Cr.P.C., it was evident that it was put to him that there was evidence on record against him to the effect that 120 grams Alprazolam powder was found to have been recovered from him as per prosecution's evidence and that the recovery memo (Exhibit Ka-2) was also pointed out to have been prepared pursuant to the said recovery. He was also given opportunity to give evidence in defense. It is true that the specific question in regard to the accused having given consent in the form of Exhibit ka-1 was not put to him but as has been held above by this Court that it was not necessary in the light of law laid down in Baldev Singh's case (Supra) that consent be in writing, it may be oral as well, it would not be treated to have caused any prejudice to him. Hence, not putting this question specifically to the accused would not be treated to be a gross violation of provision of 313 Cr.P.C.. In the case relied upon by the learned Amicus Curiae, the facts were put because the most vital question going to the route of offense that the accused were found in possession of poppy husk placed in their vehicle, was not put to them, which was found prejudicial to the interest of the accused. Such is not the case here. Hence, no benefit could be given to the accused in the present case of the aforesaid ruling.

17. Next point raised by the learned Amicus Curiae relates to the police party not making it clear as to weights of which particular units were used in weighing contraband substance recovered from the accused and from where they were taken for this purpose. Also discrepancy with regard to bringing the weighing machine has also been pointed out in the statement of witnesses of fact. Hence, it would be pertinent to refer to those discrepancies and to analyse whether they were serious enough to dent the case of prosecution.

18. In recovery memo it is recorded that the recovered contraband was weighed separately by weighing machine and weighing units (Taraju Bant). It is not recorded as to from where these items were procured for weighing the contraband substance. PW-1 in this regard has stated in examination-in-chief that constable Chandrika Prasad was sent for bringing weighing machine and weighing units from nearby Kasba, Bhatni. In cross-examination, this witness has stated that for weighing the recovered contraband substance, a weighing machine (Taraju) was used meant for weighing small items, as well as the weight units (Bant) of 10, 20 and 50 grams. The weighing machine was taken from the vendors who used to sell items at Bhatni station and in procuring these items about half an hour had been consumed. PW-2 in this regard has stated in cross-examination that the weighing machine and its weight units (Bant) were brought by constable Chandrika Prasad from the nearby Kasba which consumed about one hour. This discrepancy is highlighted by the learned Amicus Curiae and it is stated that this is a concocted story because there is a discrepancy in statement of above two witnesses, because PW-1 says that these items were taken from the local vendors available on the station while the PW-2 has stated that they were procured from nearby Kasba, hence the benefit of these discrepancies must be given to the accused. In my opinion, this discrepancy is not very significant so as to dis-believe the prosecution's version that recovery of 120 grams of Alprazolam powder was made from the accused keeping in view that the statements of witnesses are recorded after a long time of the actual happening of the occurrence and there could be possibility of this kind of discrepancies occurring in statements when they are recorded at a distant point of time. They are ignorable in view of this Court.

19. The next point raised by learned Amicus Curiae is that PW-2 was not on the spot; he has been made witness subsequently to strengthen the case of the prosecution. In this regard the statements of PW-2 on page no. 29 is pointed out in which he has stated that no beating was made of the accused nor any injury was caused. He does not recollect whether he had received any injury. This is totally against record because there is medical report stating that the accused had received one injury. Hence, this witness may not have been present on the spot and has been made witness subsequently. The said argument does not sound appealing because already an explanation has been given by court that the said kind of minor injury could be received by falling down on the ground or by any other mode and could also be self-inflicted. Moreover, this witness has stated that he does not recollect that accused had received any injury. This statement would not be read that accused had not received any injury. No benefit can given of this discrepancy to the accused.

20. The next point raised by Shri Rakesh Kumar Singh, learned Amicus Curiae is that PW-4 (I.O.) has stated that he recorded in case diary about the FSL's report received on 2.8.2013 which was not possible because report is of 13.9.2013 signed by Officer of FSL on 22.8.2013. The sample was sent on 27.7.2013 and the same was received in FSL on 29.7.2013. The S.S.P., Balia had sent a letter on 12.9.2013 saying therein that the FSL's report was not received which was delaying the investigation. In this background it was argued that how PW-4 made a mention in case diary that he copied the FSL's report on 2.8.2013. P.W-4 (I.O.) has stated that on 12.9.2013 he made copy of FSL's report in case diary which is also incongruous as till then how could he has received the report when it was sent on 13.9.2013 which is a date mentioned in the FSL's report (Exhibit Ka-9). In this regard, the relevant portion of the statement of PW-4 requires to be reproduced. On 2.8.2013, he had made entry in case diary regarding depositing report of recovered contraband substance in FSL and on 3.8.2013 after receiving the memo and report, he verified that it bore correct name and address of accused-appellant Baijil Saliben, he made its entry in general diary dated 9.9.2013 with the permission of court. The statement of accused Baijil Saliben was recorded inside the District Jail, Deoria on 12.9.2013, he copied the report of the contraband substance which was found to be Alprazolam . In cross-examination he has stated that contraband substance was sent to FSL for examination. It is clear from the cross-examination made by the defense that no verification was obtained of these dates as to when the report of FSL was received by the investigating officer. If there was any doubt about these dates, the same could have been verified in cross-examination of this witness but the same has not been done. Perusal of the FSL's report (exhibit Ka-9) shows that it was found there bearing seal (Monogram SI UPP) on the bundle of cloth which contained 118.10 grams of contraband substance wrapped in newspaper, kept inside a polythene bag (Thaila). The said contraband substance was received on 29.7.2013 in FSL and this report has been signed by Scientific Officer of the FSL on 22.8.2013 which bears the date 13.9.2013 which appears to be the date when it was sent back to the investigating agency. In cross-examination, the statement given by PW-4 clearly says that he made entry in G.D. on 12.9.2013 of FSL's report which was copied and in cross-examination the said contraband was found to be Alprazolam. There is discrepancy of date undoubtedly but that appears to be a mistake committed by Investigating Officer in mentioning the said date. The same may be a clerical error as well. No where in the said report has it been mentioned that the seal was found broken or tampered. Hence, there does not appear to be any doubt that the recovered contraband substance was not the same which was recovered from the accused on the spot.

21. In cross-examination of witness PW-1 he has stated that the contraband recovered from Baijil Saliben was 120 grams, which was sent for being tested to Forensic Science Lab. The report of FSL shows the weight of said contraband to be 118.10 gram. At the time of its recovery, signature of the accused was taken on the cloth in which the same was sealed and he had also signed the same. At the time of its presentation before him, during his statement, he identified that one seal on the presented case property was his while the other seal was that of FSL. He had sent the entire recovered material and not its sample. The Investigating Officer had sent docket of the material to be tested. Before being sent to the FSL this recovered material remained in Malkhana. PW-1 has stated that after sealing the contraband recovered from the accused, the same was sealed on the spot and its sample was prepared. Although, the said sample was not on file. The contraband substance sealed was also signed by the accused which is present in court and which has signatures on it of the accused. The said contraband substance has also his signatures on it. The said contraband substance was kept in Malkhana. He did not have the seal of the police station, the said material was presented before court at the time of remand.

22. PW-2 has stated that 120 grams Alprazolam was recovered from the accused, which was brought to the police station along with accused. After the said material was brought to the police station, the same was handed over to the Head Moharrir. PW-4 (Investigating Officer) has stated in examination-in-chief that on 2/8/2013, he had received a report regarding depositing of the recovered material. On 3/8/2013, test report was received in the office of the Police Station. On 13/9/2013, Constable Jaishankar Rai had got the concerned chemical examination report received to him. In cross-examination this witness states that the recovered material was sent to the Forensic Science Lab on 27/7/2013. Before being sent to FSL the said material was kept in Malkhana. The said material was sent for being tested by him after getting the docket prepared, which was taken by Constable Jaishankar Rai. The examination report was received by him on 13/9/2013. From the above statements it appears that the recovered contraband was kept in Malkhana for about 10 days and thereafter it was sent for chemical examination to Forensic Science Lab. During the presentation of this material before the trial Court, PW-1 identified that the cloth which contained this material bore two seals one, which he himself had affixed and the other that of FSL. It clearly establishes that despite the fact that the said recovered material was sent for being tested by Forensic Science Lab 10 days after the recovery, it was not tampered as nothing has come on record that the seal was found broken at the time when the statement of PW-1 was being recorded. The only infirmity which has come to light is that in the Forensic Science Lab report (Exhibit Ka-9) it has been mentioned that 118.10 grams suspected contraband powder, rolled in a Newspaper cutting, sealed in a cloth was found by them and after being tested it was found to be Alprazolam. It would be in the fitness of things to say that chemical examination report would not be required to be proved formally in view of provision contained in section 293 of Criminal Procedure Code. The question as to how it's quantity was found to be 118.10 grams instead of 120 grams also came for consideration before the Court below because it was argued before it that this difference in weight makes it doubtful that it was the same material which was alleged to have been recovered from the accused. But the learned Court below explained it away by saying that the said difference is negligible which could be possible due to different weighing machines by which the same were weighed. No infirmity is found in such a conclusion drawn by the learned lower Court in this regard because the kind of explanation which is being furnished by the Court below does sound reasonable. Hence, it is held that the Court below rightly held that the said contraband was recovered from the accused, for possessing of which he did not have licence. Regarding the point that he had not signed on the recovery memo nor had he signed on any other document prepared on the spot it may be mentioned that he (PW 1) stated that after preparation of recovery memo and writing the memo he along with others as well as accused persons had put their signatures thereon. A copy of the recovery memo was provided to the accused, it was also endorsed that no public witness was ready to be a witness of recovery in this case. Two bundles were prepared of recovery memo, he does not recollect whether any quantity was taken out from the recovered substance for sample. The recovered material was given to head Mohrrir in two bundles. It was wrong to say that accused Baijil Saliben was arrested in Gorakhpur and was brought to Bhatni and was falsely challaned and no contraband substance was recovered from him.

23. No detailed cross-examination has been made by the defense as regards there being any tampering in the seal by which the recovered material was sealed on the spot, which was presented before the court at the time of statement of witnesses. Also no question is put in cross-examination regarding any discrepancy in the dates with regard to sending of the contraband substance for being tested by FSL and the receipt of its report by the police. The only discrepancy which was noticed has already been highlighted by Shri Rakesh Kumar Singh, learned Amicus Curiae with regard to difference in the quantity which was allegedly sent to the FSL i.e. 120 grams of Alprazolam Powder which was found to be actually 118.10 grams by FSL, regarding this the court has already expressed its opinion that this is a negligible difference which is explainable by the fact that such difference is always possible if the same material is weighed by two different weighing machines. Hence, on this ground no infirmity appears to be there in the case of prosecution.

24. As regards the prosecution not making effort to take public witness at the time of recovery of alleged contraband substance from the accused, the reliance may be placed on Tasawwar Ansari Vs. Union of India (1999) 35 ACC 675 in Paragraph 32 of which this Court has held as below:-

"32 . In these days, totally unconcerned people do not dare to appear against criminals as they have a lot of financial as well as political patronage available to them. Such smugglers are invariably armed and then can take revenge against such public persons without hesitation. That is why, finally, the public witnesses avoid to support the prosecution case. If at all they agree at the time of raid, search etc., they try to resile from the same in trial Court as is evident from the statement of Shri K.D. Sharma, PW 2. The departmental witnesses cannot be seen with an eye of suspicion especially when they have no anterior enmity with the accused and they are doing their official duties. If such a cynical view is taken, every person shall become interested and the departmental witnesses will have to be thrown away without any rhyme or reason. This is not law of the land. The law is that the departmental witnesses per se are not got up witnesses and their evidence cannot be discarded simply because they are people of the department. Doing one's official duty is not a crime. Therefore, the question of seeing the statement of these witnesses with an eye of suspicion is unreasonable, unworkable and is totally illegal in approach. The Hon'ble Supreme Court has rightly rejected the plea that departmental witness should always be seen with an eye of suspicion. Rather the law is that their evidence should be seen with a caution and the evidence should be analysed and examined very thoroughly. But once it is found that the presence of such departmental witnesses is established and they are telling the truth, that shall be utilised as a valuable piece of evidence and conviction can be based upon that."

25. In view of above position of law, the police witnesses are not shown to have any anterior enmity with the accused because of which it would be difficult to believe that these witnesses would be deposing against the accused with ulterior motive. No suggestion is given of any kind of enmity even. Hence their statements when meticulously analyzed, prove the fact that accused was found in illegal possession of 120 grams of Alprazolam, for which he had no license. It can also be mentioned here that the quantity recovered from the accused is much higher than the quantity described as commercial, which would be difficult to be planted by police keeping in view the price that it would entail. In statement under section 313 Cr.P.C., the accused has taken plea of false application, but has failed to produce any witness in defense in support of his version.

26. Since the possession of contraband substance (Alprazolam) has been found established, the burden shifts on the accused in view of provision under Section 35 and 54 of the NDPS Act as to how he came in possession of such a huge quantity of contraband substance. He has not adduced any evidence in defense so as to discharge burden shifted upon him. Therefore, there seems to be no infirmity in the judgment delivered by the court below holding the accused guilty. On the basis of evidence on record, it is found proved that the accused-appellant was found in possession of 120 grams Alprazolam powder to possess which he did not have any license and, hence, he has been rightly convicted by awarding the aforesaid punishment. Hence, the appeal deserves to be dismissed and is, accordingly, dismissed.

27. Let the lower Court record be returned to the Court below for further necessary action.

28. Learned Amicus Curiae Shri Rakesh Kumar Singh shall be paid Rs.7,500/- for assisting the Court in deciding the appeal.

Order Date :- 30.11.2017

A.P. Pandey