Suresh Kumar Patel vs State Of U.P.
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL No. - 2085 of 2012
 

 
Appellant :- Suresh Kumar Patel
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ashutosh Upadhyay
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

The instant criminal appeal has been preferred by the appellant Suresh Kumar Patel s/o Rajdhar Patel, r/o Para Bihari, P.S. Bisanda, District-Banda against judgment and order of conviction dated 21.5.2012 passed by the Court of Additional and Sessions Judge (Court No.1), Banda in Special Case No.49 of 2010 under Section-20 of the N.D.P.S. Act, arising out of Case Crime No.357 of 2009, P.S.-Bisanda, District-Banda, whereby the appellant has been convicted under Section-20 of the N.D.P.S. Act and sentenced to one year rigorous imprisonment coupled with fine Rs.5,000/- (Five Thousand Rupees) with default stipulation to suffer additional rigorous imprisonment for six months.

Heard S.K. Mishra, learned counsel for the appellant, learned A.G.A. for the State and perused the record.

Facts relevant for this appeal appear to be that an FIR was lodged by the police on 19.11.2009 against the appellant which refers to that the police party of Police Station-Bisanda was busy in patrolling duty and investigation of cases on 19.11.2009, when it reached within vicinity of village Para Bihari near School, a tip off information was received that one person Suresh Kumar Patel s/o Rajdhar Patel is uprooting Ganja trees from his court yard and plucking the leaves from it for sale. The police party rush to the spot and tried to collect public witnesses but none agreed to become witness and no time was left for the police party to call any Magistrate or Gazetted Officer, therefore, S.I. A.P. Tiwari along with police force after making search inter se and being satisfied that nothing illegal was with them started for the place of occurrence along with the informer, reached at the house of the accused Suresh in village Para Bihari. On the pointing out of informer, the police saw that a person sitting in the court yard was plucking leaves of 'ganja'. He was arrested after little chase by the police around 12:10 p.m. On inquiry being made, the person disclosed his name Suresh Kumar Patel s/o Rajdhar Patel, r/o Village Para Bihari, P.S. Bisanda, District Banda and told that he was scared on seeing the police, therefore, he was fleeing away. The police party informed him of his right to be searched before a Magistrate or a Gazetted Officer but the accused reposed faith on the police party and agreed for his search by the police party itself. Letter of consent was prepared by the informant and executed by the accused. On search being made the accused was found having possession of 1.600 kg. leaves of green 'ganja' in a cloth, the contraband was weighed 1.600 kg. and the accused was arrested under Section 18/20 N.D.P.S. Act. Out of the recovered substance, 200 grams of 'ganja' was separated as sample and the rest of the contraband was sealed in a cloth. Both the sample and the recovered quantity were separately kept under seal, specimen seal was prepared on the spot. Arrest of the accused was made in compliance of the direction of the Apex Court and according to Human Rights norms. The memo of arrest and recovery was prepared on the spot and the signature of the accused was obtained on the original memo which was signed by the police party. Information of arrest of the accused was given to his family and the accused along with the recovered substance was taken to the police station, where a case was registered against the accused at the police station at 2:30 p.m. on 19.11.2009 at Case Crime No.357 of 2009, under Section-18/20 N.D.P.S. Act, P.S. Bisanda, District-Banda. Check FIR is Exhibit Ka-4.

On the basis of the aforesaid check entry was made in the concerned G.D. of the aforesaid police station Bisanda at the aforesaid date and time and investigation started the very same day. Statement of various witnesses was recorded. The place of incident was inspected by the Investigating Officer and at the instance of the Informant, A.P. Tiwari on 25.11.2009, the site-plan was prepared. The sample was sent to Forensic Science Laboratory, Mahanagar Lucknow, which on examination confirmed the contraband to be 'ganja'. After the completion of the evidence, charge-sheet was filed against the accused under aforesaid section of N.D.P.S. Act at Case Crime No. 357 of 2009. Accordingly, charge was framed against the appellant under Section 20 of the N.D.P.S. Act. The charge was read over and explained to the accused, who abjured the charge and opted for trial.

The prosecution produced four witnesses, S.I. Ambika Prasad Tiwari PW-1 is the Informant, besides he has proved arrest of the accused and the recovery made from him Exhibit Ka-2 and Exhibit Ka-3, respectively. He has also proved the recovered 'ganja' as Material Exhibit-1 and 'lungi' as Material Exhibit-2. Constable Akshay Kumar PW-2 has described the prosecution story. Constable Ravi Karan Singh PW-3 has prepared the concerned Check FIR and G.D. entry as Exhibit Ka-4 and Exhibit Ka-5, respectively. S.I. Kamlendra Singh PW-4 is the Investigating Officer, he has proved the site-plan as Exhibit Ka-6 and filing of the charge-sheet as Exhibit Ka-7. The prosecution also submitted report of Forensic Science Laboratory - Exhibit Ka-8.

In his statement recorded under Section-313 Cr.P.C., accused has described various reasons for his false implication. He has produced Chhote Lal as DW-1 and has filed 9 papers per list 34Ka as documentary evidence.

The trial court after hearing the case on merit passed aforesaid order of conviction and sentencing order, which resulted into this appeal. It has been claimed on behalf of the appellant that there is no independent witness to the fact of arrest and recovery. Memo of information has not been prepared. Similarly, public witnesses were also not availed by the police. Serial number of the substance recovered and kept at the police malkhana was kept only in memory by PW-1 after a gap of an year or so which makes things controlled and tutored by someone else than the informant. No consenting letter was prepared in writing in which he said that he does not wish to be searched before or in the presence of a Gazetted Officer or a Magistrate. PW-1 cannot disclose fact as to from where he collected the weighing equipment. Signature of both PW-1 and PW-2 have not been put on the concerned G.D. entry relating to arrival and departure of these persons from the police station. Prosecution story does not inspire confidence.

The learned A.G.A. has vehemently opposed the contention and has submitted that each aspect of the case has been consistently met and proved and the recovery and arrest of the accused cannot be doubted merely because independent witnesses were not availed. He has supported the conviction and sentence awarded against the accused.

The moot point that arises for adjudication of the appeal relates to fact whether the prosecution has been able to prove its case beyond reasonable doubt? Then bare perusal and scrutiny of the testimony of the informant and the other witness PW-2, particularly testimony of PW-1 S.I. Ambika Prasad Tiwari, the informant does inspire confidence. He has detailed the process and the various steps, which he took in effectuating arrest and recovering the contraband from accused Suresh Kumar on 19.11.2009 around 12:10 p.m. after tip off information was received by him. He has proved the manner in which arrest was effectuated and the person of the accused was searched and the recovery of contraband weighing 1.600 kg. Mandatory compliance of Section-50 was gone into and suggestion was given to the accused, if he is interested in his search in presence of a Magistrate or a Gazetted Officer, whereupon he declined the offer and voluntarily opted to be searched by the police party itself, therefore, search was carried out, whereupon the aforesaid contraband was recovered and recovery memo was prepared and 200 grams of sample was taken out of aforesaid amount of contraband and two separate packets were prepared on the spot and sealed by him. He has also proved preparation of consenting letter obtained from the accused. He has also proved that the information of arrest of the accused was given to his family members. The testimony of PW-1 Ambika Prasad Tiwari is corroborated by the testimony of Constable Akshay Kumar. All the relevant papers have been proved by aforesaid two witnesses. PW-3 Constable Ravi Karan Singh has proved lodging of the FIR and the concerned FIR and the G.D. entry Exhibit Ka-4 and Exhibit Ka-5, respectively. The Investigating Officer S.I. Kamlendra Singh PW-4 has proved the details of investigation and has proved filing of charge-sheet Exhibit Ka-7. He has also proved statement recorded by him under Section-161 of Cr.P.C. Merely because the malkahana register was not produced that alone would not nullify the entire process because the testimony of prosecution witnesses of fact particularly PW-1 and PW-2 is overwhelmingly consistent and on the point of arrest of the accused and seizure of contraband from his possession.

All these points were properly scrutinized and taken into consideration by the trial court while recording conviction and the trial court was justified in convicting the accused and passing aforesaid sentence of one year rigorous imprisonment coupled with fine Rs.5,000/- (Five Thousand Rupees) and in case of default, the accused was directed to serve out six months additional imprisonment.

For the reasons aforesaid, the judgment and order dated 21.5.2012 is hereby affirmed and the appeal lacks merit and the same is dismissed.

In this case, the appellant is on bail. His bonds are cancelled, he be taken into custody to serve out the sentence imposed on him by the trial court.

Let a copy of this order be certified to the trial court concerned for information and necessary follow up action.

Order Date :- 8.8.2018

S Rawat