Laakhan Yadav @ Lakhan Yadav vs State Of U.P.
2018 Latest Caselaw 1869 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 42
 
Reserved
 
AFR
 
Case :- CRIMINAL APPEAL No. - 4056 of 2017
 
Appellant :- Laakhan Yadav @ Lakhan Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Amar Nath Mishra,Satyendra Kumar Mishra
 
Counsel for Respondent :- G.A.
 
Hon'ble Arvind Kumar Mishra-I,J.

Heard Sri A.N. Mishra, learned counsel for the appellant, Sri Om Narain Tripathi, learned A.G.A. for the State and perused the record of this appeal.

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 01.07.2017 passed by the court of Additional Sessions Judge/Special Judge, Fast Track Court-II, Lalitpur in Sessions Trial No.41 of 2009, State Vs. Laakhan Yadav and another, Police Station- Bar, District- Lalitpur arising out of Case Crime No.93 of 2009, under Section 20/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'N.D.P.S. Act), whereby the appellant has been convicted and sentenced for charge under Section 20 (b) of the N.D.P.S. Act, 1985 and sentenced to 10 years R.I. with fine Rs.1,00,000/- (Rupess One lac) and in default of payment of fine would have to suffer additional imprisonment for one year.

The prosecution case in brief is that on 10.02.2009, the informant- S.O.G. Lalitpur- Malkhey Dixit- was on duty along with Constables- Ajay Mishra, Dayaram, Raghuvendra Awasthi, Arun Kumar Tiwari and Kishori (Driver of Government Jeep UP 94A/ 4141). They were present at Paraun Tigaila situated at police station- Bar. At that point of time, S.O. Balbir Singh along with Constables- Rajendra Prasad Dubey, Yogendra Singh and Bhagwandas arrived on Government vehicle and were talking to each other, when a tip- off information was received from the informer (mukhbir) that accused- Laakhan Yadav of Village- Khodan, Mauza- Baghura is reaping 'ganja' crop on his field and in case raid is made, 'ganja' crop can be found. Believing on this information, the aforesaid police personnel proceeded towards the spot on foot, leaving behind their Government vehicle. On the pointing out of the sneaker, the police party saw two persons weeding the 'ganja' crop. On seeing the raiding party, both the accused ran towards the eastern side where the wheat crop was sown. At about 100 paces east from the well in the field of 'ganja' crop, the accused was apprehended by the police.

The recovery memo describes that the green 'ganja' crop was standing on the field. This incident took place around 6.00 A.M. in the morning. On inquiry being made, the accused disclosed his name as Laakhan Yadav s/o Panna Lal Yadav and there was another accused also. Both resident of Village- Khodan, Mauza- Baghura, Police Station- Bar, District- Lalitpur and apologized to the police for the mistake, which had been committed by them. The police party tried to inform the Magistrate or the Deputy Superintendent of Police of the area for the recovery, but they could not be contacted because of morning hours. The accused could not show any authority to cultivate 'ganja'. Therefore, they were taken into custody under Section 20 & 22 of the N.D.P.S. Act. The memo of recovery was prepared on the spot and it was observed that information of arrest shall be given to the higher authorities from the police station. The ganja crop was uprooted on the spot by the police personnel and sacks were arranged from village- Khodan, Mauza- Baghura by Constable- Yogendra- and the ganja was placed in it. Sample was taken out and kept in another bag. The specimen seal was placed on it and the weighing equipment, which was also arranged by Constable- Yogendra- was used for weighing the recovered quantity of ganja, whereupon, it weighed 200 kgs. Thus, the ganja was taken into custody and it was sealed on the spot and witnesses were sought to be availed, but could not be arranged. The entire process lasted from 6 a.m. to 9.30 a.m. on 10.02.2009.

The recovery memo is Exhibit Ka-1. On the basis of memo, F.I.R. was lodged at Police Station- Bar in Case Crime No. 93 of 2009, under Sections 20/22 of N.D.P.S. Act on 10.02.2009, which is Exhibit Ka-2. Relevant entries were made in the concerned G.D. of the same date at aforesaid case crime number at aforesaid date and time at Police Station- Bar.

The investigation ensued and was conducted by S.I. Rajendra Prasad Dwivedi P.W.6, who recorded statement of the prosecution witnesses and took note of the contents of various documents, prepared site plant Exhibit Ka-4 and the process, whereby the recovered/seized article was placed in the 'malkhana' of police station was also noted and the sample taken out of the recovered substance was sent to Vidhi Vigyan Prayogshala, Agra and was submitted there at Serial No. 1944 of 25.02.2009 by Constable- Umesh Chandra Sharma.

Details of Khatauni from Lekhpal concerning village- Khodan, Mauza- Baghura was obtained on 23.03.2009 and in the meanwhile 30.04.2009 analysis report was also obtained.

After completing the investigation, charge-sheet- Exhibit Ka-5- was filed.

The accused was heard on the point of charge and charge under Section 20B of the N.D.P.S. Act was prepared, it was read over and explained to the accused, who denied the charge and claimed to be tried.

To prove its case the prosecution produced six witnesses. Brief sketch of them is as under:-

S.I. Malkhey Dixit P.W.1 is the informant and witness of fact. Raghvendra Awashti P.W.2 is also witness of fact. S.O. Balvir Singh P.W.3 is also witness of fact. Chunni Lal P.W.4 is the Lakhpal, who was then Incharge of Village- Khodan, Mauza- Baghura on the date of occurrence and has proved relevant entries entered in the concerned Revenue Record. Constable Chandrashekhar P.W.5 has made relevant entry in the concerned Check FIR and the G.D., whereby the F.I.R. was lodged and case registered against the accused at Case Crime No.93 of 2009. S.I. Rajendra Prasad Dwivedi P.W.6- is the Investigating Officer. He has proved the investigation conducted by him.

Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, he termed his implication false.

No evidence whatsoever was led by the defence.

The trial Judge after hearing both the sides and vetting merit of the case passed aforesaid judgment of conviction and sentence.

Consequently this appeal.

It has been claimed on behalf of the appellant that bare perusal of the recovery memo itself is indicative of fact that the mandate contained under Section 50 of the N.D.P.S. Act has not been complied with. The search was made in a casual manner without determining as to who is in possession of the field in question where ganja was cultivated and who exercises control over the field where ganja was sown. The fact is that the piece of land/khata is possessed by several owners as 'khatadars' then without demarcating the field and ascertaining fact as to who infact sown ganja field, punitive action cannot be asserted by the prosecution witnesses against the accused. The testimony of prosecution witnesses of fact on the point of arrest and recovery is contradictory in material particulars. The Investigating Officer never recorded statement of Lekhpal- Chunni Lal P.W.4 and has tried to improve his version in the trial court. The entire proceedings was done at the police station because the police was inimical towards the appellant. The quantity of sample taken out from whole of the ganja has not been disclosed. The 'malkhana register' and the Constable, who took the sample to the Forensic Labrotary, Agra, has not been produced. The recovery memo does not specify the number of sacks in which the recovered material was kept and it does not disclose specific weight of each sack and how these sacks were weighed either in single stroke or differently, has not been elaborated.

The investigation is faulty. The mandatory provisions of Section 50 of the N.D.P.S. Act has not been complied and the accused was not offered for search being made on the spot in the presence of Magistrate or Deputy Superintendent of Police of the area concerned.

Learned A.G.A. has supported the judgment of the trial court and has submitted that the charge against the accused was satisfactorily proved beyond reasonable doubt and the sentence awarded is just.

The moot point that arises for adjudication of this appeal relates to fact whether the charge under Section 20(b) of the N.D.P.S. Act stands proved beyond reasonable doubt against the accused?

Bare perusal of the first information report, which is based on the recovery memo- Exhibit Ka-1, is indicative of fact that the incident took place on 10.02.2009 around 6.00 A.M. when the police party raided the field of the accused at village- Khodan, Mauza- Baghura in District- Lalitpur. It is claimed that both the appellant- appellant Lakkhan Yadav and another accused- Achche Lal- were caught on the spot after a little chase and there was sown ganja crop on the field, for which the accused apologized to the police. The police party tried to inform the higher authorities- say- the concerned Magistrate and the Deputy Superintendent of Police of the area-, but failed to inform them because it was morning hours. Thereafter, the recovery memo- Exhibit Ka-1, proceeds on and describes that the standing crop was found to be that of 'ganja'. It was uprooted by the police personnel and thereafter Constable Yogendra arranged few sacks from the village, the recovered ganja was placed inside the sacks and the same Constable also brought weighing equipment from the village- Khodan, Mauza- Baghura by which the recovered substance/ganja was weighed, which aggregated on weighing 200 kgs. The accused was arrested. Some quantity of ganja was taken out for sampling and was kept in separate packet under seal. The recovered quantity was also sealed separately and specimen seal was made. The accused was apprised of his constitutional as well as legal rights.

This is the core description, which appears in the recovery memo- Exhibit Ka-1, the very base and foundation of this case, as the testimony of the prosecution proceeds various discrepancies of graver nature are reflected. It is not normal that the police party consisted of several police personnel including one S.I., one Station House Officer, Incharge S.O.G. and S.O. of police station- Bar of District Lalitpur, could not contact higher authorities for informing about the incident of recovery of ganja from the ganja field, merely because it was morning hours. The S.O. of police station- Bar- Balbir Singh was on his Government Jeep and facility of walkie- talkie and wireless system is always available on the Government jeep of S.O., therefore, the explanation hardly sounds well that the Magistrate and the Deputy Superintendent of Police of the area were tried to be contacted, but it being morning hours, they could not be contacted. There is no description in the recovery memo- Exhibit Ka-1, as to how much sacks were used for keeping the recovered material and how much quantity of sample was taken out from the recovered ganja. Specification of weight of each sack is altogether missing. The mode of weighing has not been described and it is claimed by the prosecution witnesses that on weighing the recovered ganja, weighed 200 kgs. The point is that these details must have been exclusively elaborated in the recovery memo Exhibit Ka-1 so as to give preciseness to the process of recovery and seizure made by the police at village Khodan, Mauza- Baghura.

It being the month of February, wheat crop was standing around the spot from where ganja was recovered, still no villager from village Khodan, Mauza- Baghura was present over there and no public witness was availed on the spot,- is highly suspicious circumstance. There is no mention of name of any villager of village Khodan, Mauza- Baghura as the person, who on being asked to be a witness refused to stand witness to the process of recovery and seizure.

The testimony of P.W.1 Malkhey Dixit P.W.1 is more or less the same as language written in recovery memo- Exhibit Ka-1- in his examination-in-chief. However, it is obvious from his testimony that he did not care to know the number of the field from where the recovery was made. He also did not care to see about the actual ownership of the specific land/field from where ganja was recovered. He has admitted fact that the number of sacks/gunny bags has not been described in the recovery memo. Six gunny bags/sacks were produced before the court, wherein ganja crop was stated to have been kept, but there was no specific weight attributed to a single gunny bag and he is unable to spell the exact weight of a single gunny bag so sealed by him on the spot on 10.02.2009 at the time of the seizure of the substance/contraband.

Similar is the testimony of witness P.W.2 Raghvendra Awasthi- he too is testifying on the same line and his version is the same are on material points- like P.W.1 Malkhey Dixit.

Both these witnesses cannot specify the exact quantity of sample taken out from the recovered ganja and surprisingly P.W.2 Raghvendra Awashti on page 21 of the paper book claims in his cross-examination that the proceedings lasted till 9 P.M. on 10.02.2009 and he has described that the material (ganja plants) was tried to be uprooted since after 6 P.M. on 10.2.2009 and it was completed/uprooted within an hour. There was moisture in the soil. This by itself is indicative and suggestive of fact that the things have not been done in the manner claimed by P.W.1. Malkhey Dixit that the proceeding took place in the morning and lasted from 6 a.m. upto 9.30 a.m. on 10.2.2009 at village Khodan, Mauza- Baghura. It appears that this witness was either not present on the spot or a tutored witness.

On the similar line is the testimony of S.O. Balvir Singh P.W.3. He has also described about the recovery and seizure in the same manner as P.W.1 Malkhey Dixit. In his cross-examination, he too could not specify the various reasons as to why he did not care to know the exact number of the field from where the recovery was effectuated and did not care to know the actual owners of the land/field in question. He has testified to fact that he cannot say as to how much quantity of sample was taken out from the recovered ganja on the spot. He cannot say whether the Government vehicle made second trip for conveying the recovered Ganja from village- Khodan, Mauza- Baghura upto police station- Bar, whereas, another prosecution witness P.W.2 has stated on page no.20 in his cross-examination that two trips of ferrying jeep was made for conveying the recovered article from the spot upto to the police station- Bar.

There is no testimony of any Constable as to who took the sample for examination to the Vidhi Vigyan Progshala, Agra and what was the quantity of the sample. No worthy register or document has also been proved in support of this fact by the prosecution. The testimony of Rajendra Prasad Dwivedi P.W.6 also creates lot of suspicion when he expresses his ignorance about omissions of relevant entries made in the concerned General Diary concerning case crime number 93 of 2009 of police station- Bar. He is very casual in describing fact that the sample was conveyed to the Vidhi Vigyan Progshala, Agra and receipt thereof was obtained by Constable Umesh Chandra Sharma. Safe keeping of the sample at the police station has not been proved even in the least.

Except this specific piece of testimony, there is nothing more on the point of quantity of any sample ever taken by the informant from the recovered ganja. Relevant to take note of testimony of P.W.4 Chunni Lal- Lekhpal of the concerned area/village Khodan, Mauza- Baghura surprisingly, he has stated in his cross-examination that daroga ji never recorded his statement prior to his testimony before this Court. Statement of Lekhpal- Chunni Lal was recorded on 2.1.2013 before the trial court. It means daroga ji never interrogated this witness and did not record his statement, however, daroga ji P.W.6 Rajendra Prasad Dwivedi has testified to the ambit that he obtained copy of Khasra of village- Khodan Mauza- Baghura and submits in his examination-in-chief that he recorded statement of Lekhpal- Chunni Lal, whereas, Chunni Lal has denied any statement having been recorded by daroga ji prior to his testimony before the trial court on 23.1.2013.

This by itself is suggestive of fact that the Investigating Officer is trying to improve on his testimony and his testimony is outcome of embellishments.

Once the sampling process has not been reasonably proved as to what amount of sample was taken out of the recovered ganja and how it was sent for chemical test and in what condition has not been proved before the trial court. This is a material aspect of the case and silence on the part of prosecution on this issue creates suspicion about the actual claim made by the prosecution that sample was taken out and it was sent for chemical examination to the Laboratory.

The testimony of P.W.4 Chunni Lal (Lekhpal) is of much relevance when he says that as per the relevant khatauni of village- Khodan, Mauza- Baghura of the year- 1413 (fasli- 1418), wherein, in the column of Khata No.165- names of Lakhan Singh, Ram Singh, Balbir Singh s/o Panna Lal and Smt. Ram Pyari widow of Panna Lal have been mentioned as the co- owners with area 2.8050 hectare. Balbir Singh sold his 1/4th share in the year 1400 fasli to some another person. In this khtauni, the share of accused Laakhan Singh has been fixed to 1.73 acre area. As per the khtauni, each khatadar/co- owner was cultivating his separate land and were in possession thereof and he is not aware of fact whether Laakhan Singh had cultivated ganja on his field. He has been cross-examined, wherein he has specifically stated that he cannot say as to what part of land 'khatadars' were in possession of. He cannot tell about the boundary marks of each khatadar. In his cross-examination, he has described that on 10.2.2009, he was residing near police station- Bar, which is situated at a distance of 20- 25 steps away from the police station. He never informed about the ganja crop being cultivated on the field of the accused. Although he has accepted fact that it was obligatory on his part to have intimated about illegal cultivation of crop if the same is being sown on the land.

The above analysis exposes the falsity of the claim made by the prosecution on a number of count. The availability of villagers of village- Khoran cannot be denied in toto, but the police failed to arrange a single villager as a witness to the fact of recovery of ganja on the spot. Though presence of public witness is not a sine qua non in such cases, but facts are apparent that access and availability to public particularly the villagers was overwhelmingly there but there was none arranged by the police. This raises question mark on the claim of the police party that they were unable to arrange any witness from among the village. Thus non- availability of witness here works against the prosecution. The police failed to specify the exact weight of ganja kept inside each of the gunny bags. The police party including the informant and the witnesses of fact and also the Investigating Officer were unable to specify the quantity of sample taken out from the recovered ganja and non- examination of Lekhpal by the Investigating Officer and carelessness on the part of the Investigating Officer to locate exact land possessed by the appellant are the big loopholes. It was incumbent on the I.O. to have determined at least possessing right of the appellant over the land from where ganja cultivation was found. But it was omitted to be done.

The investigating officer P.W.6 has surprisingly stated that at the time when he visited the spot (the field in question), the field was empty. There was no vestige of ganja cultivation on the field. Point for consideration is that the I.O. prepared the site plan Exhibit Ka-4 and it is dated 11.2.2009. The incident took place on 10.2.2009. There is nothing on record which may show that the piece of land, on which ganja cultivation was recovered, was emptied by all means. As to what happened that after one day of the incident of recovery of ganja from the field the I.O. found the land absolutely empty with no vestige or sign of ganja cultivation. This is a strong circumstance point to fact that the site plan was not inspected by the I.O., but he acted as per advice of his colleagues who are police personnel of this case.

These vital aspects and reflections of this case perhaps escaped attention of the trial court and it misread evidence, vis-a-vis, facts and circumstances of the case and erroneously returned finding of conviction, which finding of conviction, on the face, becomes perverse and illegal for aforesaid reasons.

In the light of aforesaid discussion, the appeal succeeds and the same is allowed. The impugned judgment and order of conviction dated dated 1.7.2017 passed by the court of Additional Sessions Judge, Fast Track Court No.-2, Lalitpur in Sessions Trial No.41 of 2009, State Vs. Laakhan Yadav and another, Police Station- Bar, District- Lalitpur arising out of Case Crime No.93 of 2009, under Section 20/22 N.D.P.S. Act, is set aside. Appellant is exonerated of the charge as aforesaid.

In this case, appellant is in jail. He shall be released forthwith unless and until he is wanted in connection with any other case.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Dt.07.08.2018

Raj