Rajesh Joshi {Jail Appeal} vs State Of U.P.
2017 Latest Caselaw 4748 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

"A.F.R."
 
Reserved on 18.07.2017
 
Delivered on 21.09.2017
 
Court No. - 15
 
Case :- CRIMINAL APPEAL No. - 442 of 2014
 
Appellant :- Rajesh Joshi {Jail Appeal}
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Jail Appeal(In Person),Ashok Kr. Bajpai
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Rajesh Joshi (in jail) Vs.  State of U.P.
 
S.S.T. No. 146 of 2012
 
Case Crime no. 161 of 2012
 
Under Section 8/18 N.D.P.S Act.
 
P.S. G.R.P. Charbagh
 
District-Lucknow.
 
Hon'ble Satya Narain Agnihotri, J.

1. Instant appeal has been directed against the impugned judgment and order dated 19.10.2012 passed by the learned Addl. Sessions Judge, Court no. 16, Lucknow, whereby learned Sessions Judge hold guilty to the accused-appellant under Section 8/18 Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced 12 years Rigorous Imprisonment and fine of Rs. 1,20,000/- (one lac twenty thousand) and in default of payment of fine further to undergo 12 months Rigorous Imprisonment.

2. For the disposal of the appeal the facts of the case are that on 29.03.2012 complainant N.K. Mishra, Sub Inspector, police station-G.R.P. (Charbagh), Lucknow was busy in law and order duty and was stationed near the prepaid booth of taxi at about 6.10 A.M. At that time informer informs him that two suspected persons are seated in lane no. 2 near tube well. Relying upon the information of the informer, complainant and other police officials took their search and nothing incriminating article was found from their possession. Thereafter complainant with other police officials reached at the place where the accused-appellant was seated with other co-accused. Seeing the police officials accused-appellant perplexed and tried to run away but they were apprehended at 8:45 A.M.

3. On enquiry one person told his name Rajesh Joshi and other co-accused Jakir. On further enquiry accused-appellant informed that he has cannabis (charas). Receiving information about cannabis complainant informed to accused-appellant that he has right to be searched in presence of Magistrate or Gazetted Officer. Appellant gave his consent to be searched by the police officials. The letter of consent was prepared. Upon search 1.20 kg. contraband cannabis was recovered from the bag of the accused-appellant which was taken in the police custody. 50 gms. Cannabis was segregated from the recovered contraband cannabis and rest 970 gms. was sealed separately. The sample was also sealed at the spot.

4. The accused in his examination under Section 313 Cr.P.C. denied the allegations levelled against him by the prosecution and stated that he has been falsely implicated in this case.

5. To prove the guilt of the accused-appellant prosecution has examined four witnesses who are as under :-

(i). Narendra Kumar Mishra, complainant who on oath proved that on 29.3.2012 he was present at prepaid taxi booth stand at Charbagh railway station under G.R.P. police station. Three constables of G.R.P. were also present there. On that very time informer informed that two suspected persons are seated near the tube well in the circulating area who had contraband articles with him. Relying on the information he tried to accompanied independent witnesses but no one agreed for this. Since no independent witness was agreed to accompany them, that's why the complainant with other police officials took their search by each other and after determining that no contraband is with any member of the police party, they had proceeded for the place of incident with informer. The informer after pointing towards the appellant and other co-accused escaped from there. The complainant with the assistance of police party arrested the appellant with other co-accused at 8:45 P.M. in the lane no. 2 near government tube well. After nabbing the accused-appellant upon enquiry told to police party that he has cannabis (charas). Receiving this information complainant informed to the accused-appellant that he has right to be searched in presence of Magistrate or Gazetted Officer, if he requires so. The accused-appellant refused to exercise his right and gave his consent to be searched by the complainant and the police party, then a consent letter was prepared, which was signed by the complainant alongwith present police official and the appellant. Search was conducted and 1.20 kg. contraband cannabis (charas) was recovered from the bag of the appellant. This contraband article was weighed. Witness further proved that 50 gms. cannabis (charas) was segregated from the consignment which was recovered from appellant's possession. Thus, 50 gms. sample and rest 970 gms. cannabis (charas) was sealed separately at the spot and the document (Ext.Ka-1), memo of recovery and arrest was prepared, which was signed by the complainant himself and witnesses including appellant and other co-accused.

(ii) PW2 Constable Gyaneshwar Sharma who is said to be with the police party, which arrested the accused-appellant, has supported the statement of PW1 complainant.

(iii) PW3 S.I. Ashwani Kumar, Investigating Officer of the case has stated on oath that he has investigated this matter and visited the place of occurrence and prepared its site plan (Ext.Ka-2) and sent the sample of contraband article for chemical examination to Forensic Science Laboratory, Lucknow, the report of which is on record.

(iv) PW4 Head Constable Zafar Abbas has stated on oath that on 29.3.2010 he was deputed the work of clerk and he registered the chek F.I.R. which is marked as (Ext.Ka-4) in pursuance of an application submitted by PW1 in the police station. He further stated that this fact was recorded in the G.D. by constable Virendra Kumar, copy of which is on record as (Ext.Ka-5).

6. Learned Amicus Curiae submitted that prosecution version does not create confidence because according to PW1 complainant and PW2 constable who accompanied complainant, they were present at the prepaid taxi booth which is situated in the circulating area at about 6.10 A.M. and at that very time the informer had informed that two suspected persons are seated near the tube well. Receiving this information they all tried to take assistance of independent witness but no one was agreed for the same. In these circumstances the police party searched themselves and believing that nothing incriminating material is with any person of the police party, they proceeded for the place where appellant with other co-accused was seated near the tube well. They further stated that after seeing to the police party accused-appellant perplexed and tried to fled away from the scene of occurrence. The police party has arrested the accused-appellant along with other co-accused in lane no. 2, and, thereafter the appellant was informed that he has a right to be searched in the presence of Magistrate or Gazetted Officer where upon the accused-appellant informed that he has cannabis (charas) with him. Since the accused-appellant waived to exercise his right to be searched in presence of Magistrate or Gazetted officer, a letter of consent was prepared, which is on record of learned trial Judge as paper no. B1/11, same was signed by the complainant and the other persons of police party and accused-appellant Rajesh Joshi with other co-accused Jakir.

7. According to evidence of PW1 Narendra Kumar Mishra and PW2 Constable Gyaneshwar Sharma when accused-appellant was apprehended by the police party, upon an inquiry accused-appellant told that he has cannabis (charas) then a letter of consent was prepared but the police party did not search the person of the accused-appellant and according to PW1 and PW2 the cannabis (charas) was recovered from the bag of the appellant. Since the cannabis (charas) was kept in a bag then there was no need to search the person of the appellant and prepare a consent letter. Since the consent letter was prepared and the person was not searched of the appellant which demonstrates that events as narrated by the prosecution witnesses did not occur. Since the appellant-accused informed the police party that he has cannabis in his bag then there was no need to prepare consent letter. The extra caution of the police party depicts that there was no such type of happening took place as narrated by the prosecution.

8. Learned Amicus Curiae further submitted that according to PW1 and PW2 1.20 kg. contraband cannabis was recovered from the appellant and 50 gms. cannabis was segregated from the cannabis which was recovered from the appellant. 50 gms. cannabis (charas) was sealed as sample and rest 970 gms. was sealed separately. But as per evidence of PW1 who was examined in the Court has stated on oath that the contraband cannabis (charas) which is produced in the Court is 1.20 kg of weight. If 50 gms. cannabis (charas) was separated from the entire contraband consignment which was recovered from the possession of the appellant then it should be 970 gms. only. The statement of PW1 N.K. Mishra demonstrates that the sample was never prepared and the sample which was sent to Forensic Science Laboratory, Lucknow for chemical examination belonged to some other case, though this argument was confronted by learned A.G.A. but I do not find any substance in the argument of learned A.G.A. because PW1 is a star witness and complainant, who in the Court has stated on oath that the material which is produced before the Court at the time of examination is 1.20 kg weight. If any sample was prepared weighed 50 gms. then this contraband material should be only 970 gms, whereas PW1 proved on oath that it is 1.20 kg. Thus, the evidence of PW1 does not inspire any confidence that the contraband cannabis (charas) was recovered from the accused-appellant and sample was preparedd for examination by Forensic Science Laboratory.

9. PW1 Sri N. K. Mishra and PW2 Sri Gyaneshwar Sharma has not proved this fact that the information regarding arrest of appellant and recovery of cannabis (charas) was ever informed to the superior officers. Thus the provision of Section 57 of NDPS Act was not complied with.

10. Learned Amicus Curiae further submitted that the place of occurrence is about 100 meters from the place where the police party received information regarding suspected persons/accused-appellant. From the evidence it can be very well inferred that this information was received by these police officials in between 6:10 or 6:30 A.M. but they have arrested the accused-appellant at 8:45 A.M. It is impossible that any person will wait for his arrest by the police party for a long time about 2:00 hours.

11. I agree with the submission of learned Amicus Curiae though it is not proved by the prosecution that when the informer communicated the fact regarding presence of accused-appellant near the tube well, but it could be inferred that police party will not stationed at the prepaid taxi booth for a long time about two and half hours. Thus, if the information was received in between 6:10 to 6:30 A.M., why the complainant and the other police officials did not try to apprehend the accused-appellant at once and why they have waited for a considerable time of two and half hours, this conduct of police party creates a doubt about the theory of the prosecution.

12. It is further submitted by learned Amicus Curiae that according to prosecution witnesses and the documents, the place of occurrence is about 200 meters from the G.R.P. Police Station and the appellant-accused was arrested at 8:45 A.M. Despite this fact first information report was lodged at 11:10 hours, the prosecution has failed to give any plausible explanation for this inordinate delay.

13. Learned A.G.A. submitted that due to preparation of recovery memo, arrest and sealing of the contraband article about two hours has been consumed by the police party.

14. I do not find any substance in the submission of learned A.G.A. because the recovery and the arrest memo which is available on record contains only three pages. These three pages can be scribed within fifteen minutes by a prudent and literate person and sealing of contraband article hardly will take half an hour and if more than two hours time has been consumed by the police party then there should be an explanation which could inspire confidence in the mind of the Court. The prosecution has failed to tender any satisfactory explanation regarding this inordinate delay. Thus it can be very well inferred that the events as narrated by the prosecution had not been occurred.

15. The document No. B-1/11 which is available on the record of learned trial court depict that a conjoint notice was given under Section 50 of NDPS Act to appellant with another co-accused Jakir.

16. In my opinion, notice under Section 50 of NDPS Act should be given individually and personally. If a notice regarding right of search in the presence of learned Magistrate or Gazetted Officer has been given conjointly, then it vitiate the proceeding which has been conducted by the prosecution.

17. PW2 constable Sri Gyaneshwar Sharma admitted in his cross-examination that he had not signed consent letter. The so-called consent letter which is document No. B-1/11 in the record of learned Trial Judge demonstrate that PW2 put his signature upon it. In the circumstances, it could be inferred that the entire proceedings took place in the police station as suggested by appellant in cross-examination of PW1 and PW2.

18. The copy of recovery and arrest memo Ext. Ka-1 was not served to appellant Rajesh Joshi as admitted by PW1 complainant. Thus it is proved that the appellant was not informed the reason and grounds of his arrest.

19. The combined reading of deposition of prosecution witnesses PW1 and PW2 are pointers to the effect that so called consent letter was obtained only after the appellant-accused was arrested. Since this consent letter was prepared after the arrest of the accused-appellant that's why the mandatory provision of Section 50 of the N.D.P.S. Act was not complied with by the prosecution. The explanation regarding delay in lodging F.I.R. has not been tendered by the prosecution.

20. In view of the above discussion and considering the facts and circumstances of the case, I find that learned Addl. Sessions Judge has failed to consider the facts and circumstances in correct perspective and due to erroneous approach hold guilty to the appellant-accused, Rajesh Joshi. Hence the impugned judgement and order of learned Addl. Sessions Judge regarding conviction and sentence is liable to be set aside. Appeal has force and is liable to be allowed.

21. Consequently, the appeal is allowed. The impugned judgment and order dated 19.10.2012 passed by the learned Addl. Sessions Judge, Court no. 16, Lucknow is hereby set aside.

20. Appellant Rajesh Joshi is in jail. He shall be released forthwith, if he is not wanted in any other case.

22. Let the judgment be notified to the learned trial Judge for compliance. The record of learned trial Court be returned at once.

Order Dated: 21.09.2017

VKG

(S.N. Agnihotri, J)