Smt. Janaki Roka vs State Of U.P.
2017 Latest Caselaw 4830 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 A.F.R.
 
Court No. - 23
 

 
Case :- JAIL APPEAL No. - 5141 of 2015
 

 
Appellant :- Smt. Janaki Roka
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,V.P.Gupta(A.C.)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Siddhartha Varma,J.

This appeal has been filed against the judgement and order dated 29.9.2015 which was passed in the Special Case No. 43 of 2011 arising out of Case Crime No. 826 of 2011 under Section 8/23 of the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as 'the N.D.P.S. Act').

There were two more accused alongwith the present appellant. Their cases were also tried together but were decided by separate judgements.

Briefly stated the facts of the case are that on 12.9.2011, the S.H.O Mahesh Ram Gautam alongwith Constables Hirdaya Narayan Yadav, Benimadhav Mishra and Ramdulare Yadav in a TATA Spaciao Car numbered U.P. 56 G 0038 driven by Charanjeet Singh at around 3:00pm, upon being informed by a Mukhbir Khas(informer) that three women from Nepal, carrying charas were to cross Sonaoli Border, reached the spot. The Special Security Branch (SSB) was present with its team comprising Sub-inspector Sant Singh with four other women Constables, namely, Jahanara Khan, Madhu Yadav, Preeti Kumari and Anita Dhurve. The three accused at around 4:50pm entered the Indian Teritory. They were stopped and were told that if they so desired they could get themselves searched in the presence of a Magistrate or a Gazetted Officer. However as the three agreed to be searched by the police team present and did not insist on being checked in the presence of a Magistrate or a Gazetted Officer and admitted that they had charas on their persons they were searched by the police team present. They told the police their names which were Janaki Roka, Ash Kumari and Dilmaya Kuli. From the possession of Janaki Roka, the appellant, a year old child was also found alongwith the charas which was packed in 11 packets which in their turn were securely kept in a piece of cloth. Constable Benimadhav Mishra was asked to get a weighing machine and the weights. The charas was weighed and was found to be 6.425 kilograms. From the possession of Ash Kumari also 5.100 kilogram of charas was found. From the third accused Dilmaya Kuli charas to the extent 3.350 kilograms was recovered. The fardbaramadgi/recovery memo narrates that from all the packets separately 100 grams was removed by way of sample, even though the prosecution in trial has taken a case that from each of the accused 100 grams was taken as sample. The samples and the actual recovered charas were sealed in separate packets. Upon being further interrogated the three accused stated that they were paid Rs. 8,000/- each for carrying the charas from Nepal to India. They were arrested and information about their arrest was sent to their families. Crime numbers were allotted. The appeal which is being dealt with arises out of Case Crime No. 826 of 2011. After the F.I.R. was registered investigation commenced. Investigating Officer prepared a site plan and the sample in each case was sent by him to the laboratory at Varanasai with Constable Awdesh Kumar Pandey. Upon test being conducted by the laboratory it was found that the sample as was sent was charas and thereafter the Investigating Officer submitted his charge sheet in the Court. The Court on 29.3.2012 charged the appellant under Sections 8/23 of the N.D.P.S. Act. The appellant however denied the charges and demanded a trial, which commenced after it was transferred to the Court of Additional Sessions Judge Court No. 1, Maharajganj.

The prosecution examined its witnesses which were P.W. 1 Mahesh Ram Gautam P.W. 2 Constable Preeti Kumari, P.W. 3 Constable Benimadhav Mishra, P.W.4 Sub-inspector Ramshabd Verma, P.W. 5 Constable Ramnath Rawat and P.W. 6 Constable Chhaththu Prasad.

The accused got her statement recorded under Section 313 Cr.P.C. and stated that there was in fact no recovery from her and that she was innocent and that all the prosecution witnesses were giving false evidence against her. In fact, she alleged that because she resisted the police which was demanding money from her, that it had invovled her in the crime. Smt. Janaki Roka was examined as D.W.-1 by the defence.

The counsel for the appellant made the following submissions:-

I. The First Information Report was ante timed since arrest took place at 4:50pm on 12.9.2011 and the FIR was also lodged at 4:50pm which was not possible as the place of occurrence was around 3 kilometers away from the police station. He states that the time, therefore, of the arrest and the lodging of the FIR both could not have been 4:50pm.

II. The information as was given by the informer reached the police at 3:00pm. The accused were arrested at 4:50pm and so there was a time gap of around 1 hour and 50 minutes between the receiving of the information and the arrest yet the police team did not inform its superior officers or any gazetted officer, despite time being available. This was thus a clear violation of Sections 42 and 57 of the N.D.P.S. Act.

III. There was a clear violation of the provisions of Section 42 of the N.D.P.S. Act as a lady Constable had searched the accused.

IV. The lady Constable Jahanara Khan who had searched the appellant was never produced in the Trial.

V. The sample was not entered in the Malkhana register and was taken directly to the laboratory thus it was a clear violation of Section 55 of the Act. This is what has also been laid down in JT 2002 (8) SC 292 State of Orissa Versus Sitansu Sekhar Kanungo. It was submitted that safe keeping of the seized contraband could have been guaranteed by keeping the sample as also the recovered contraband in the Malkhana after entering its quantity/weights etc. This, not having been done, clearly showed that there was tampering of evidence. In fact the Malkhana register was niether produced nor proved.

VI. The Malkhana register was not produced and proved before the Trial Court making the prosecution case absolutely doubtful.

VII. There were 11 packets recovered from the possession of the appellant and it is stated that 100 grams were taken out from each of the packets. This then would have made the sample weigh 1100 grams. But this was not the case. In the fardbaramadgi it has been stated :

"rhuksa efgyk vfHk;qDrksa ds dCts ls cjken vyx vyx pjl ds iSdVksa esa ls vyx&vyx 100 xzke] 100 xzke uewuk fudky dj rhu vyx iSdsV iksyhFkhu esa j[kdj diM+s esa loZ eqgj djds uewuk eksgj cuk;kA"

But the prosecution version has been that only 100 grams were taken from the appellant. Neither was the sample shown to have been entered in the Malkhana register nor was the recovery in the recovery memo corroborated by the statements of P.W. 3 who stated in his cross examination on 7.2.2014 that 20 packets of charas were recovered from the appellant. Further, even though it was stated in the recovery memo that 6.425 kilograms of charas were recovered from the appellant the P.W. 3 Constable Benimadhav Mishra states that 7 to 8 kilograms of charas was recovered from the appellant.

VIII. Constable, Avdesh Pandey who had carried the sample to the laboratory was not produced at all and thus it cannot be, with any surety, said that sample was sent to the laboratory and whether the sample which was sent to the laboratory was the one which was recovered from the possession of the appellant.

IX. Even though in the recovery memo and in the FIR there was no mention that the search party had first searched each other and had ensured that they were themselves not carriers, the case subsequently has been changed during trial that they had searched each other, bringing an element of doubt that the charas was planted on the appellant.

X. Prior to the search and arrest the appellant and the other co-accused were not informed by the police of their right to get searched in the presence of a Magistrate or a Gazetted Officer but subsequently the prosecution witnesses had tried to fill in this lacunae by saying that they had apprised the appellant that they had a right to get themselves searched in the presence of a Magistrate or a gazetted officer. Thus, there was a definite violation of the provisions of Section 50 of the Act.

XI. Even though the search and arrest was done in a crowded place and in the presence of so many people, yet no independent witness witnessed the search and the arrest. The police has not been able to give any reason why any independent witness did not come to witness the search and the arrest.

According to the counsel for the appellant all this definitely makes the prosecution case doubtful. The counsel submitted that the non adherence to the Provisions of Sections 42, 50, 52, 55 and 57 makes the trial absolutely bad in the eyes of law and that therefore the appeal should be allowed and the appellant should be acquitted.

In reply the learned AGA submitted that the provisions of the Act were only directory and therefore non-adherence to them would not vitiate the trial. He stated that the contradictions in the statements of the prosecution witnesses and the version of the FIR were also not of such a magnitude that they would falsify the whole prosecution case. He stated that the absence of independent witnesses would not result in an acquittal and to support his contention cited AIR 2013 SC 2068 (Ram Swaroop Vs. State (Govt. Of NCT of Delhi).

Having heard the learned counsel for the appellant, I am of the definite view that the appeal should be allowed and the appellant should be acquitted. In the judgement of the State of Punjab Versus Baldev Singh (AIR 1999 SC 2378) the following consequences have been enumerated in the event the provisions of Section 50 of the Act are not adhered to:-

(1)That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;

(2)That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;

(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;

(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.

(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial;

(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad

and unsustainable in law;

(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;

(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.

In the instat case, when the whole case of the prosecution had depended on the search and when the provisions of Section 50 were not adhered to during the search then the prosecution case gets falsified and the trial also gets vitiated. The accused were not informed that it was their right to get themselves searched in the presence of a Magistrate or a gazetted officer. The FIR does not disclose that the accused were apprised of their right to get themselves searched. The subsequent story of the prosecution that they had informed the accused of their right is unbelievable.

Further the contradictions in the statements of the prosecution witnesses and the case taken by the prosecution in the FIR cannot be brushed aside lightly. The search memo, the FIR all said that there was no searching of the search-party done by each other yet the prosecution witness states that a Jamatalasi i.e. searching of each other had taken place, making the case of the prosecution very doubtful as there could have been a possibility of planting of the contraband on the accused appellant through one of the individuals of the search party. Jamatalashi is not just a routine. It is done to ascertain that none of the police personnel was a carrier of the contraband.

Further an interesting fact is that the prosecution never tried to prove that the sample as was sent to the laboratory or even the recovered contraband was first sent to the Malkhana and was entered therein in the Malkhana register and, therefore, it cannot be said that the sample was a part of the contraband which was recovered. The Malkhana reigster was not brought to the Court and was not proved.

Still further the recovery memo and the FIR stated :

"rhuksa efgyk vfHk;qDrksa ds dCts ls cjken vyx vyx pjl ds iSdVksa esa ls vyx&vyx 100 xzke] 100 xzke uewuk fudky dj rhu vyx iSdsV iksyhFkhu esa j[kdj diM+s esa loZ eqgj djds uewuk eksgj cuk;kA"

This meant that when from the appellant eleven packets were recovered then the sample should have weighed 1100 grms. But the prosecution case during trial has been that only 100 grams from each of the accused was taken for sample.

The contradictions in the statements of the witnesses also connot be taken lightly. The statements of P.W. 3 Beni Madhav Misra were fatal for the prosecution case. Even though the fard baramadgi and the FIR state that 6.425 kgs of the charas was recovered from the possession of the appellant Constable Beni Madhav Misra states that 7 to 8 kgs of charas was recovered. Supreme Court in 1971 (3) SCC 436 (Yudhishtir Versus The State of Madhya Pradesh) has laid down that such discrepencies affect the truth of the evidence given before any court and that such improvements vitiate the trial. Independent witness was also essential and the policemen could not have been sufficient witnesses as the prosecution has not been able to convincingly prove that they, despite best efforts, could not get an independent witness.

A composite reading of the N.D.P.S. Act makes it clear that the offence was the carrying of the contraband itself which results in very severe punishments. Therefore, the N.D.P.S. Act has contemplated that the search, recovery and seizure, the test of samples and the storing of it all should be done in a very definite manner. Right from the arrest of an accused, to the recovery of the contraband, to the testing of the sample of the contraband and to the storage of it no missing link is to be tolerated. To avoid any planting of the contraband on any individual Sections 42 provides that the search had to be done by the officers stipulated in that section. Section 50 of the N.D.P.S. Act very categorically states that if the contraband is found on the person of any suspect, then the search should be done in the presence of a Magistrate or a Gazetted officer. The accused has definitely to be informed about their right of getting themselves searched in the presence of a Magistrate or a Gazetted Officer. Section 55 elaborates as to how the contraband is to be stored during the trial and as to how only by the permission of a Magistrate the sample for being tested could be taken out. Sections 42 and 57 of the N.D.P.S. Act very categorically state that the higher officials should always be kept informed and that too in writing. Therefore, the Investigating Authorities have to be very careful while they are transferring a sample for being tested or taking the contraband to the Court as evidence. Any missing link anywhere vitiates the trial.

Under such circumstances, I find that the prosecution case had various lacunae and the trial was thus absolutely vitiated. The appeal under such circumstances is allowed.

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 charges levelled against her. The appeal is allowed and the impugned judgement dated 29.9.2015 passed in the Special Case No. 43 of 2011 arising out of Case Crime No. 826 of 2011 under Section 8/23 of the Narcotic Drugs and Psychotropic Substances Act convicting and sentencing the appellants is liable to be set aside.

In the result, the appeal is allowed.

The appellant is acquitted of the charges levelled against her. The appellant is in jail. She 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.

The amicus curiae Sri V.P. Gupta was a great assistance to the Court. The Registrar General to see that payments are made to him within two months from today.

Order Date :-22/09/.2017

praveen.