Badlu vs State Of U.P.
2018 Latest Caselaw 1889 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Case :- CRIMINAL APPEAL No. - 2543 of 2004
 

 
Appellant :- Badlu
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Shatrughan Singh,Purushottam Pandey,Rajesh Kumar Singh (Ac)
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

This appeal challenges the judgment and order of conviction dated 21.08.1997 passed by the III-Additional Sessions Judge, Fatehpur, in Special Session Trial No.19 of 1995 State Vs. Badlu son of Jairam Pasi, under Section 8/20 of N.D.P.S. Act, Police Station Asothar, District Fatehpur, whereby the appellant was sentenced to ten years rigorous imprisonment with fine Rs.1,00,000/-, in case of default in payment of fine, he would be required to suffer additional imprisonment for two years.

Heard Sri Rajesh Kumar Singh, learned amicus curiae for the appellant, Sri Sanjay Kumar Rajbhar, learned A.G.A. for the State and perused the record.

The brief facts of this case originate from the recovery and arrest of the aforesaid appellant Badlu on 20.01.1995 when the informant Station House Officer, Ramesh Chandra Pushkar along with Sub-Inspector Gorakhnath Singh, Constable Chhabbu Ram, Constable Ram Roop, Constable Ram Bachan, Constable Abdul Rashid, driver Harnandan Singh were busy in patrolling with the government jeep in the area falling in the region of police outpost Sarkandi. As soon as the police party reached the hamlet of Sarkandi near culvert of canal, the police party sighted one person coming from opposite side in the jeep light. No sooner did he come near the jeep than he saw the police party, suddenly turned back and began to run away whereupon the police being suspect of him, chased him to some distance and caught him 32-35 steps away from the culvert on the Kharanja road leading to the hamlet Sarkandi around 11:00 p.m.

On inquiry being made, the appellant disclosed his name Badlu son of Jairam Pasi, resident of Mohalla Kila, Police Station Ashothar, District Fatehpur. He told that he is possessing Charas then Ramesh Chandra Pushkar asked him whether he would like to be searched in presence of the Circle Officer. He declined the offer and reposed faith in the police party and agreed to be searched by it.

The Station Officer searched the person of Badlu in the torch light then from the right pocket of Kurta, one polythene packet with some substance weighing approximately 200 grams Charas was recovered. He was asked about authority for keeping Charas but he could not show any authority or license to keep it. Therefore, the appellant was taken into custody, the recovered substance was sealed and memo of arrest and seizure was prepared on the spot in the torch light and after explaining contents thereof to all the members of the police party, their endorsements were obtained on it. The description appears in the arrest memo that it being odd hours of night, no public witness was available. The endorsement of the appellant was also obtained and copy of arrest and seizure memo was handedover to him. This memo is Ext. Ka-1.

Pursuant thereto, the case was lodged at Police Station Asothar on 21.01.1995 at 1:30 a.m. at Case Crime No.6 of 1995 under Sections 18/20 of N.D.P.S. Act and relevant entries were made in the concerned general diary and the case was registered against the appellant who was detained in the police lockup at Police Station Asothar. Check FIR is Ext. Ka-4.

The investigation took place and it was conducted by Israr Ahmad PW-3. The first Parcha of this case was prepared and noted by Ramesh Chandra Pushkar. Thereafter, this witness (PW-3) proceeded with the investigation. The investigation was taken over by him on 03.02.1995. The Investigating Officer recorded statement of various persons including the prosecution witnesses, prepared site plan Ext. Ka-2 and the recovered substance/Charas was sent for chemical examination to the concerned Forensic Science Laboratory, Lucknow through Constable Ram Prasad on 21.02.1995. After completing the investigation, the Investigating Officer - PW-3 - filed charge sheet against the appellant.

Pursuant thereto, the charge was framed against the appellant under Section 20 of N.D.P.S. Act.

In turn, the prosecution examined as many as three witnesses namely Gorakhnath Singh PW-1 Ramesh Chandra Pushkar PW-2, the informant and Israr Ahmad PW-3, the Investigating Officer.

Thereafter, evidence for the prosecution was closed and statement of the appellant was noted under Section 313 Cr.P.C. wherein he claimed innocence and submitted that the police called him from his house and took to the police station and detained him there. The appellant/defence did not lead any testimony.

The trial court after considering the merit of the case returned the aforesaid finding of conviction and sentenced to ten years rigorous imprisonment coupled with fine Rs.1,00,000/-, in case of default in payment of fine, he would be required to suffer additional imprisonment for two years.

Consequently this appeal.

Relevant to mention that chemical examination report dated 24.04.1995 is on record and marked as Ext. Ka-7.

Sri Rajesh Kumar Singh, the learned amicus curiae for the appellant has briefly submitted that mockery of the provisions of N.D.P.S. Act has been made by the police party and false case has been thrusted upon the appellant. Not a single provision of N.D.P.S. Act has been complied with and the obligation required was performed in mechanical way. The order of conviction and sentence is erroneous in the eye of law.

Learned A.G.A. for the State has supported the impugned judgment by submitting that due compliance of the provisions of N.D.P.S. Act has been done in toto.

Also considered the above submissions.

Upon careful consideration of the facts and circumstances of the case and upon scrutiny of the entire testimony, it is apparent that memo of recovery and arrest Ext. Ka-1 is absolutely a waste piece of paper and legally not sustainable in the eye of law and its falsity is exposed by virtue of the language written on it.

The reasons are specific, first; there is no whisper in recovery memo that prior to carrying out the search of the person of the appellant, the police party took the search of each member of the police party and ensured that they are not possessing any illicit or unwanted object or suspect. Secondly; the verbal offer for search before the Circle Officer though declined by the accused still no consenting letter was prepared on the spot. Thirdly; how the police party came to know about the recovered substance to be Charas in all certainty is not clear. Fourthly; the seizure memo prepared by the Station Officer/police party on the spot is silent on factual point of sampling of the seized substance/Charas which was branded as Charas. Fifthly; there is no mention to the ambit that the entire substance recovered is being treated as sample and it shall be sent for chemical examination. However, in the testimony of the prosecution witnesses, there is improvement to the ambit that the entire recovered substance was sent through Constable Ram Chandra for chemical examination to the Forensic Science Laboratory on 21.02.2995. Constable Ram Chandra was not produced by the prosecution so as to ascertain about the precise quantity of the sample. Lastly, though the sample was sent for chemical examination to the Forensic Science Laboratory at Lucknow, but it (the report) has not indicated either roughly or precisely vide its report dated 24.04.1995 as to exactly what quantity of substance was received by it. Thus there is absolute negation of the quantity of substance actually sent for chemical examination.

Therefore, on the point of weightage, the sample sent for chemical examination is on the face an improvement and fact is that no sampling was done on the spot and various things have been omitted by the police party. Recovery memo does not contain a single word about sample being taken on the spot. Even, no Malkhana register was produced and no police personnel / constable was produced to verify the fact that the substance was kept at police station in Malkhana in intact condition and was conveyed through Constable Ram Chandra in sealed position and there is omission on the part of the prosecution to establish that the conveyance so made was free from suspicion.

For the reasons aforesaid, the impugned judgment and order of conviction dated 21.08.1997 passed by the III-Additional Sessions Judge, Fatehpur, in Special Session Trial No.19 of 1995 State Vs. Badlu son of Jairam Pasi, under Section 8/20 of N.D.P.S. Act, Police Station Asothar, District Fatehpur, becomes erroneous as such the same is hereby set aside.

Accused-appellant is acquitted of charge as above.

Accordingly, the instant appeal succeeds and the same is allowed.

The appellant is on bail. He need not surrender in this case. His personal bonds and bail bonds are cancelled and sureties are discharged. The appellant shall ensure compliance of Section 437A Cr.P.C.

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

Order Date :- 08.08.2018

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