Manoj Dheemar vs State Of U.P.
2018 Latest Caselaw 75 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Case :- JAIL APPEAL No. - 3586 of 2016
 
Appellant :- Manoj Dheemar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail, Hari Shankar, Amicus 	Curiae
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

This appeal has been preferred from jail by the appellant Manoj Dheemar who has been convicted and sentenced vide judgment and order dated 04.06.2016 passed by learned Additional Sessions Judge/Special Judge (E.C. Act), Jhansi in S.T. No. 68 of 2014 (State Vs. Manoj Dheemar) arising out of Case Crime No. 403 of 2014, under Section 20 of N.D.P.S. Act, Police Station Kotwali, district Jhansi with 10 years rigorous imprisonment and fine of Rs. 1 lac. In case of default to deposit the fine, the appellant has to undergo one year additional imprisonment.

Heard Shri Hari Shankar, learned Amicus Curiae, Shri Vinod Kant, learned Additional Advocate General assisted by Shri Amit Sinha and Shri Brij Raj Verma on behalf of the State. Perused the record.

The prosecution case in brief is that on 17.7.2014 at 10.30 A.M., Sub Inspector Ramji Singh alongwith Con. 579 Ramesh Chandra was on vehicle checking duty at Chowki Badagaon Gate, Narayan Baag Road, district Jhansi, when they saw a person coming from the side of Mandi. Seeing the police, he immediately turned back and proceeded towards Mandi road. On suspicion, the policemen tried to stop him but when he did not stop, they surrounded and arrested him at Mandi road. On being enquired, he told his name as Manoj Dheemer son of Maltu Dheemer (appellant) and confessed that as he has illegal Charas with him, he was running away seeing the police. The accused was informed that he has a right to be searched in presence of a Magistrate but he stated that he has full confidence on the police, he is ready to be searched by the policemen and there is no need to call any Magistrate. He was asked to write a consent letter for such purpose on which he stated that as he is less educated, you draft the letter and he will put his signature on it. Thereafter a consent letter (Ext. Ka. 3) was prepared and the signature of accused was taken on it. On being searched the accused appellant was found in possession of Charas kept in a polythene bag and wrapped in a newspaper. The police party had an electronic weighing scale with them on which the Charas was weighed and its weight was found to be of 500 gms. A sample of 50 gms. Of Charas was kept separately under sealed cover for sending it to Forensic Science Lab for chemical examination. No public witness became ready to give evidence. Thereafter recovery memo (Ext. Ka. 4) was prepared on the spot on which the signature of the accused was taken and its copy was given to him. On the basis of recovery memo, check report (Ext. 4-A) was prepared and relevant entries about the registration of case were made in the General Diary (Ext. Ka. 2).

The matter was investigated. The police recorded the statement of the witnesses under Section 161 Cr.P.C.. The recovered Charas was sent to the Forensic Science Lab from where positive report about Charas was received which is Ext. Ka. 7 on the record. After concluding the investigation, the police submitted chargesheet against the appellant.

In the trial court, charge under Section 20 N.D.P.S. Act was framed against the appellant who denied from the charge and claimed to be tried.

The prosecution in order to prove its case, examined 5 witnesses in all. P.W. 1 is Ranbahadur Singh Chauhan who was posted at P.S. Kotwali as Head Moharrir. He has registered the case on the basis of recovery memo at Crime No. 403 of 2014 under Section 8/20 N.D.P.S. Act on 17.7.2014 at 13.10 hours and has made the relevant entries in the G.D. He is a formal witness.

P.W. 2 is Ramji Singh who is the first informant and an eye witness. He has arrested the appellant alongwith Charas and has sent the contraband for chemical examination.

P.W. 3 is S.I. Virendra Singh who is the Investigating Officer of the case.

P.W. 4 is Head Constable Syed Wahid Ali. He has taken the sealed bundle containing sample of 50 gms. of Charas to Forensic Science Lab, Agra for chemical examination.

P.W. 5 is Con. 579 Ramesh Chandra who was accompanying the first informant S.I. Ramji Singh (P.W. 2) at the date, time and place of occurrence and who in his hand writing has prepared the recovery and the arrest memos on the dictation of P.W. 2 S.I. Ramji Singh.

No other witness has been produced by the prosecution.

After conclusion of the prosecution evidence, the statement of appellant under Section 313 Cr.P.C. was recorded in which he denied from all the charges and stated that he used to sell 'Chaat' before his involvement in the present case. His father has died. At the time of occurrence, he was under the influence of liquor. The police arrested him, kept him for two days in the Thana and falsely implicated him in the present case showing a planted recovery of Charas.

The learned trial court found the prosecution witnesses reliable and trustworthy and convicted and sentenced the appellant as mentioned in the earlier part of this judgment.

The legality and correctness of the impugned judgment has been assailed in the present appeal mainly on the following grounds :-

1. The alleged recovery of the contraband 'Charas' from the possession of the appellant is wholly doubtful in this case. The mandatory provisions regarding search and seizure have not been complied with by the police. There is no compliance of section 50 of the N.D.P.S. Act as the appellant has not been apprised of his right to be searched before a Gazetted Office.

2. There is no compliance of section 57 of the N.D.P.S. Act as the higher officers have not been informed in writing.

3. All the witnesses are police personnel and are highly interested witnesses. The first informant and the investigating officer were posted at the same police station. Therefore, the investigation was not done in a free and fair manner.

Per contra, learned AGA has contended that there is no illegality or irregularity in the impugned judgment requiring any interference by this court and the appeal is liable to be dismissed.

Considered the rival submissions advanced by the parties.

Insofar as the compliance of section 50 of the N.D.P.S. Act is concerned, the Hon'ble Apex Court in the landmark case of State of Punjab Vs. Baldev Singh, (1996)6 SCC 172 decided by a Constitution Bench of the Hon'ble Supreme Court has laid down the law that if the empowered officer, without any prior information as contemplated by section 42 of the Act, makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search a contraband under the NDPS Act is also recovered, the requirement of section 50 of the Act are not attracted.

In the present case there was no prior information with the police team, which was on its routine duty of vehicle checking and during normal course of duty the contraband has been recovered from the possession of the appellant. Therefore, in wake of the above cited legal position, section 50 of the NDPS Act is not attracted. Moreover, the recovery memo and the statements of the witnesses clearly show that section 50 of the Act has been complied with by the police team as the appellant was informed about his right and was given a choice to be searched before a Gazetted officer or by the police team and when the appellant opted to be searched by the police team and gave his consent in writing to the police, he was searched by the police. Copy of the written consent with signature of the accused is available on the record as Exhibit Ka-3 which has been duly proved by P.W. 2 - Ramji Singh and the appellant has not denied from his signature on it.

In so far as the compliance of Section 57 of N.D.P.S. Act is concerned, the evidence available on record shows that none of the witnesses has been cross examined on this issue. Moreso, the Hon'ble Apex Court in its recent judgment delivered on 28.11.2016 in Criminal Appeal No. 1096 of 2016, Dalbagh Singh Vs. State of Punjab, by a Bench of three Hon'ble Judges, while relying on its earlier judgment rendered in Sajan Abraham Vs. State of Kerala (2001)6 SCC 692, has held that :-

"section 57 of the NDPS Act is not mandatory in nature but only directory, and unless it is demonstrated that non-compliance of it has caused prejudice to the accused persons and has resulted in failure of justice, these rules, which deal with the steps to be taken by the officers after making arrest or seizure, will not invalidate such arrest or seizure."

The third arguments advanced by learned counsel for the appellant that all the witnesses are police personnel, has also no force.

There is no doubt that all the prosecution witnesses in this case are members of police force but it is settled law that the statements of police officials should not to discarded only on this ground alone. No reason has been shown by the appellant for his false implication in this case by the police.

The Hon'ble Apex court in Baldev Singh Vs. State of Haryana, 2016 Cri. L.J. 154 has held as under : -

"There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness."

.........

"In his statement under Section 313 Cr.P.C., the appellant had not stated anything as to why would the police foist the false case against the appellant. It is to be noted that huge quantity of poppy straw was recovered from the possession of the appellant. Admittedly, the police officials had no previous enmity with the appellant. It is not possible to accept the contention of the appellant that he is being falsely implicated as it is highly improbable that such a huge quantity has been arranged by the police officials in order to falsely implicate the appellant."

In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, the Hon'ble Apex Court has held as under:

"Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."

The facts of the case clearly indicate that accused was found carrying a polythene bag wrapped in a newspaper having 'Charas' in it in his left hand. Thus he was in conscious possession of it.

In Baldev Singh's case (supra) the Apex Court has observed as under:-

"Once the physical possession of the contraband by the accused has been proved, Section 35 of the NDPS Act comes into play and the burden shifts on the appellant-accused to prove that he was not in conscious possession of the contraband."

In Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, AIR 2000 SC 821, the Hon'ble Apex Court has observed that where an accused admits that narcotic drugs were recovered from bags that were found in his possession at the time of his apprehension, in terms of Section 35 of NDPS Act, the burden of proof is then upon him to prove that he had no knowledge that the bags contained such a substance.

In the wake of the above discussion and the legal position cited above, this court is of the considered opinion that the prosecution has been successful to prove the charges against the accused/appellant beyond reasonable doubt. The learned trial court has also discussed in detail each and every aspect of the case while convicting the appellant. The findings recorded by the trial court do not require any interference in this appeal.

Accordingly, the appeal is dismissed.

Let the record be sent back to the trial court along with a copy of this judgment. The trial court is directed to take immediate follow up steps so as to ensure that the sentence awarded is served out by the accused-appellant.

Shri Hari Shankar, Advocate, who has very efficiently assisted this Court as learned Amicus Curiae, in hearing of this appeal be paid Rs. 10000/- (rupees ten thousand) as fee for his valuable assistance to this Court.

Order Date :- 19.04 2018.

S.B.