Vinod Kumar Yadav vs State Of U.P.
2017 Latest Caselaw 4886 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 23
 

 
Case :- CRIMINAL APPEAL No. - 5055 of 2015
 

 
Appellant :- Vinod Kumar Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Prashant K. Lal,Anil Kumar Singh,Kk Mani
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Siddhartha Varma,J.

This criminal appeal has been preferred by the appellant Vinod Kumar Yadav, under section 374(2) of Code of Criminal Procedure (For short Cr.P.C.) against the judgement and order dated 31.08.2010 passed by Additional District Judge/Fast Track Court-2, in Special S.T. No. 76 of 2008 (State Vs. Vinod Kumar Yadav) relating to case crime no. 747 of 2008, under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act (For Short NDPS Act) Police Station Kasya, District Kushinagar at Padrauna, whereby the appellant was convicted and sentenced under Section 8/20 of the NDPS Act with rigorous imprisonment of 15 years along with a fine of Rs.1,50,000/-. In default he was to undergo two years of additional simple imprisonment.

Briefly stated, the prosecution story was that upon an information being received by the Special Operations Group (For short SOG) comprising Sub Inspector Ranvijay Kumar Singh, Constable Govind Agarwal, Constable Nagendra Yadav, Constable Anil Tiwari and Constable Dhananjay Rai on 17.07.2008 that certain criminals with illegal arms were crossing the Kasya Thana, reached the spot on a Jeep numbered U.P. 57G 0016 with a Driver-Laxman Prasad. Before proceeding to the site in question, the SOG informed the Thanadhyaksha, Kasya, Vinod Chandra Srivastava and reached the site at around 4.30 A.M. where supposedly the criminals were to reach. In the light of a torch, upon reaching the site, the SOG sighted the criminals, and ordered them to stop. However, with an intention to kill, the accused unsuccessfully fired upon the SOG personnel, who with alacrity arrested three out of the five who were present. They gave out their names as Vinod Kumar Yadav son of Natthu Yadav, Jai Kumar son of Adalat and Arvind Yadav son of late Baljeet Yadav, respectively. When Vinod Yadav was searched, then a black coloured bag was found hanging under his right shoulder, and upon being asked about it contents he revealed that it had charas which he had brought from Bihar and was taking to his hometown. The accused Vinod Kumar Yadav was apprised of his right to get himself searched by a Gazetted Officer but he was confident that Sub Inspector Ranvijay Kumar Singh would faithfully undertake the search and got himself searched by him. Upon being searched it was found the bag contained three yellow coloured plastic bags, which was charas in the form of rods. The accused guessed that the weight of charas recovered from him was about 3 Kgs. However, to get the exact weight, upon being directed by Sub Inspector Ranvijay Kumar Singh, Constable Govind Agarwal arranged for a weighing scale (Taraju) and the confiscated charas was found weighing 3 Kgs. Fifty grams of the confiscated charas was kept in a separate plastic bag as a sample was required to be sent to the laboratory. The remaining 2 Kgs. and 950 Gms. of the contraband was kept in a separate bag. Both plastic bags were separately kept. A copy of the recovery memo was prepared and was handed over to the accused-appellant. Thereafter, the case was got registered. Upon investigation, charge sheet was forwarded by the police to the Court, which framed charges under Sections 8/20 of the N.D.P.S. Act against the appellant Vinod Kumar Yadav. The appellant pleaded not guilty and asked for trial. The prosecution led its evidence. The witnesses were examined and cross-examined. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. who denied carrying of the contraband and stated that the prosecution witnesses were not to believed. He further stated that the police had apprehended him from his house and that all the confiscation, which was shown of the contraband was in fact planted on him. After considering the case of the prosecution and the defence of the accused the Trial Court concluded that the appellant was in possession of 3 Kg. contraband (charas) and thereafter, sentenced him to undergo rigorous imprisonment for 15 years along with a fine of Rs.1,50,000/- with the default Clause that in case of non payment of fine the appellant was to further undergo a simple imprisonment of two years.

Learned counsel for the appellant has submitted that there were such lapses on the part of the investigating agency that if they were properly analyzed they would render the conviction absolutely bad. He submitted:-

i) There were over-writings and cuttings in the recovery memo.

ii) In the arrest memo, the name of the arrested accused Vinod Kumar Yadav was mentioned as Jai Kumar Yadav (Exhibit-2).

iii) The signature of Viond Yadav as was made on the memo of arrest was very different from the signature on his statement under Section 313 Cr.P.C.

iv) The manner in which the sample was collected was also defective. In the beginning the SOG had only found some country made arms in possession of the accused and had not found any bag containing charas. However, later on the bag was found, which, according to the learned counsel meant that the bag was planted.

v) The next submission was with regard to the fact that even though the police force could have found independent witnesses no effort was made to get one. When Constable, Govind Agarwal (P.W.4) was directed to bring a weighing scale (Taraju) and weights (Baat) from the nearby village to weigh the contraband, then Constable Govind Agarwal (P.W.4) had simply returned with the weighing scale himself. If the constable was bringing the weighing scale from a village then he could have definitely requested the owner of the weighing scale to have accompanied him and he could have become an independent witness.

vi) Still further it has been argued that the weighing scale and weights were not produced in evidence and one does not know what kind of weighing scale was used to weigh the contraband.

vii) It has been further submitted that the contraband was weighing 3 Kgs. Fifty grams were allegedly segregated. Learned counsel submitted that when there was no weight (batt) of fifty grams then how the team concluded that the sample was weighing fifty grams only. The P.W.3 had not been able to specify as to how the 50 gms. sample was segregated when there was no weight (batt) of 50 gms available. Further, only from one Rod, the 50 gms. were taken out, meaning thereby the Charas of the other Rods was not got tested at all.

viii) Learned counsel for the appellant has very forcefully submitted that the entire confiscated contraband was not brought to the malkhana of the nearest Police Station. There is no mention as to how the sample was sealed. No seal was found on it.

ix) What is more, it has been argued that without getting an entry done in the malkhana, the sample was sent to the Chemical Laboratory at Varanasi. He has submitted that in AIR 2009 Supreme Court 432, Hardip Singh V. State of Punjab, it has been laid down that it was the duty of the person, who had confiscated the contraband to put his seal and, thereafter, send it to the malkhana and from the malkhana after getting the proper permission from the Magistrate, the sample should have gone to the Chemical Laboratory. Learned counsel submits that in the instant case no such thing was done. All these clearly go to show that definitely there was violation of the provisions of Sections 52 and 55 of the N.D.P.S. Act, 1985.

x) The sample was taken by Constable Awadh Prasad to the laboratory and the report of the laboratory came back after a gap of two months by the very same constable. But if his sample signatures on the document dated 23.07.2008 are seen and compared with those on the document dated 23.09.2008 by which he had brought back the report with the sample, it clearly shows that two different persons had put their signatures, making it doubtful as to whether the same sample was at all taken.

xi) Learned counsel for the appellant has further submitted that there was a clear violation of Section 50 of the N.D.P.S. Act as the contraband, though was found from a bag, but was actually on the person of the accused. The accused was never told of his right to get himself searched in the presence of a Gazetted Officer. Learned counsel for the appellant has further submitted that even, if the case was not covered under Section 50 of the N.D.P.S. Act, the search should have been made in compliance with Section 100 of the Cr.P.C. This having not been done, the recovery was absolutely a sham recovery.

xii) As after the search, recovery and seizure, the higher officials, were not informed in writing, the provisions of Sections 42 and 57 of the NDPS Act were also violated. An information on the radio transmitters was not sufficient. (2009) 8 SCC 539 (Karnail Singh v. State of Haryana) and (2016) 11 SCC 687 (State of Rajasthan v. Jag Raj Singh) are two such decisions, which support the case of the appellant.

In reply, learned counsel for the State has submitted that the recovery was properly done and as the contraband was recovered from a bag, it could not be said that the contraband was recovered from the person of the accused and, therefore, there was no requirement to adhere to the procedure as had been prescribed under Section 50 of the N.D.P.S. Act. Further, he has submitted that Sections 52, 55 and 57 of the N.D.P.S. Act were only directly and not mandatory in nature.

Having heard the learned counsel for the parties and after having gone through the entire record, I am of the view that the appeal should be allowed. When the S.O.G. had gone on the spot and had found that there was a certain contraband in the possession of the accused, which was being sought to be weighed by getting a weighing scale from the village and that too after 4.30 a.m. just before the break of dawn, the police force should have endeavored to get atleast some independent witness in the presence of whom, the search should have been undertaken. No mention has been made about the efforts which were made by the police force to make the search in the presence of some independent witness. If Constable, Govind Agarwal managed to get a weighing scale and weights (Baat) from the village, he could have also requested the owner of the weighing scale to have accompanied him to the site where recovery was done. What is more from the perusal of the record, it is more than evident that the procedure of getting the contraband entered in the malkhana register was not followed. In 2002(8)JT 292 (State of Orissa vs Sitanshu Shekhar Kanungo) it has been held that in a case, where the prosecution bases its case on search seizure and sample testing, no link should be weak in the prosecution case. If the malkhana register is not produced and proved, then it becomes doubtful if after the seizure the case property was properly kept. Thus, the handling of the sample and the case property does not inspire confidence. Though certain minor contradictions in the statements etc. are not to result in an acquittal, but here contradictions are such which raise a serious doubt. The arrest memo itself gives different names of the accused. The signatures on the arrest memo are very different from the signatures of the accused on the statements made under Section 313 of the Cr.P.C. In the evidence of the prosecution, witnesses also have not been able to give out the method by which 50 Gms. of charas was segregated from the 3 Kg. of contraband, which was in the form of 4 rods. It has not been clarified as to whether the 50 Gms. was collected separately from the 4 rods or was it taken from a single particular rod. All these circumstances create a serious doubt. The sample should have been sent after the contraband as also the sample of it was entered in the malkhana. Furthermore, the different signatures of P.W. 3 Awadh Prasad, the Constable, who had taken the sample and had brought back the report after two months makes it certain that the same person had not taken the sample and had brought back the report, making the whole prosecution extremely doubtful. All this was in clear violation of Sections 52 and 55 of the NDPS Act. The Court below while dealing with the collection of the sample has stated that the provisions of Sections 52 and 55 of the NDPS Act were only directory in nature and not mandatory. The sample which was sent to the laboratory also did not have the seal of the sealing authority. The laboratory report also does not say if the sample which had reached the laboratory had the seal of any officer whatsoever. 2009 SC 432 (Hardip Singh Vs. State of Punjab) clearly states that seal of the responsible officer was a must. However, in 2009 SC 432 though it was held that a seal of the officer incharge had to be there but conviction was upheld even in its absence as the officer who had confiscated the contraband had stated that he had handed it over with seals intact to the officer incharge therefore, the Supreme Court had held that the conviction was not jeopardized. Here, the trial Court has however stated:-

uewuk lhy dk fooj.k Hkh i=koyh ij ugha gSA lk{kh ds bl c;ku ds vk/kkj ij vfHk;qDr ds fo}ku vf/koDrk }kjk U;k;ky; le{k vkifRr fd;k x;k vkSj dgk x;k fd uewuk lhy rS;kj ugha fd;k x;k Fkk vkSj fdlh dk gLrk{kj ugha gS tks fd lk{kh ds c;ku ls Li"V gS vkSj uewuk lhy i=koyh ij miyC/k Hkh ugha gSA blds lEcU/k esa U;k;ky; dk er gS fd ;fn fdUgh ifjLFkfr;ksa esa uewuk lhy ij Fkkuk izHkkjh dk lhy ugha yxk gS rks mlds vk/kkj ij vfHk;qDr nks"keqDr gksus dk vf/kdkjh ugha gksrk gSA

It is a settled principle of law that if a certain provision of law is not followed and if it results in a grave miscarriage of justice, then the trial would be vitiated in the eyes of law. Here the trial Court did not get the import of the judgement reported in 2009 SC 432, which according to me has resulted in a great injustice.

The information as was sent to the higher authorities was sent by radio transmitters and not in writing (2009)(8) SCC 539 (Karnail Singh Vs. State of Haryana) states:-

"35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows : -

(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).

(b) But 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.

(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001".

Information in writing is essential as the scope to change the version of the prosecution gets minimized. In the instant case when the independent witness was not there, the seal of the official concerned was missing and the signatures of the Constable who took the sample and brought back the report differed, then the least that the officials could have done was that they should have informed their superiors within 48 hours.

In the instant case I find that the trial was vitiated and, therefore, the appeal deserves to be allowed. To sum up the following defects were there in the case of the prosecution and the trial.

1) The method in which the sample was collected, was defective.

2) Sample was collected in the absence of any independent witness,

3) Sample was sent to the chemical analyst without it being first sent to the malkhana.

4) The sample was sent to the laboratory without any seal, whatsoever.

5) The sample was sent and the report was received from the laboratory under absolutely different signatures of constable Awadh Prasad as is clear even to the naked eyes.

6) The weighing scale, the weights and the malkhana register were never produced before the Court in trial and;

7) As there was no compliance of Sections 42, 55 and 57 of N.D.P.S. Act, the trial was vitiated.

In view of the aforesaid, the prosecution failed to prove its case beyond all reasonable doubts and the appellant deserves to be acquitted of the charge levelled against him. The appeal deserves to be allowed and the impugned judgement convicting and sentencing the appellant with a rigorous imprisonment of fifteen years and a fine of Rs. 1,50,000/- is liable to be set aside.

In the result, the appeal is allowed.

The impugned judgement and order dated 31.08.2010 passed by Additional District Judge/Fast Track Court-2, in Special S.T. No. 76 of 2008 (State Vs. Vinod Kumar Yadav) relating to case crime no. 747 of 2008, under Section 8/20 of N.D.P.S. Act is set aside.

The appellant is acquitted of the charges levelled against him. The appellant is in jail. He be released forthwith without any further delay, if not wanted in any other case.

Copy of this judgement along with lower court record be sent immediately for compliance by the trial court.

Registrar General of this Court shall also ensure the compliance of this order.

Order Date :- 03.10.2017 /vkj