Dhanesari Magar vs State Of U.P.
2018 Latest Caselaw 1562 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 42
 
                                                    AFR
 
Case :- JAIL APPEAL No. - 397 of 2015
 
Appellant :- Dhansari Magar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Piyush Dubey
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arvind Kumar Mishra-I,J.

This jail appeal has been preferred by appellant Dhansari Magar w/o Late Lile Magar against the judgment and order of conviction and sentence dated 22.12.2014 passed by the Additional Sessions Judge, Court No.1, Maharajganj, in Special Case No.5 of 2011 (State Vs. Dhansari Magar), arising out of Case Crime No.845 of 2010, under Section 8/23 N.D.P.S. Act, Police Station-Sonauli, District Maharajganj, whereby appellant, Dhansari Magar was sentenced to ten years' rigorous imprisonment coupled with fine rupees one lakh with default stipulation to suffer additional imprisonment for one year.

Heard Sri Piyush Dubey, learned Amicus Curiae for the appellant as well as Sri Om Narayan Tripathi, learned AGA for the State and perused the record.

Facts relevant for adjudication of this appeal, as discernible from record, appear to be that the accused appellant was apprehended by the police party on 27.11.2010 by Ram Bharose Sharma, informant-Station House Officer, Police Station Sonauli, on 27.11.2010 at 4:00 p.m. when the police party led by aforesaid SHO, Sonauli was checking vehicles near Manav Sewa Sansthan, Sonauli. As per description contained in the arrest and recovery memo Exhibit Ka-3, the Station House Officer along with other police personnels, including two lady constables- Geeta Kumari and Supriya Bharti sighted one lady coming from the country Nepal side. The police became apprehensive of her and she was asked about her search and after taking precaution, she was searched by the two lady constables Geeta Kumari and Supriya Bharti, after the accused-appellant was informed that she can get her person searched in the presence of a gazetted officer or a magistrate, the accused said to them that she has full faith in them and they may carry out search, for which she is ready, thereupon, search was made and a blue coloured bag attached to her waist was recovered and 13 packets of 'charas' were found inside the bag.

After arranging for balancing equipment, these packets were weighed, whereupon it weighed 3kg. 500g. in all. One Indian currency note of denomination Rs.500/- and one Nepali currency note of denomination Rs.50/- was also recovered. On being asked about her name, she spelled her name as Dhansari Magar w/o Late Lile Magar. She was informed that her act is culpable under Section-8/23 N.D.P.S. Act. She was also asked about the source of her possession, whereupon she informed that some person belonging to India met her at Chanrauta and he asked her to convey the article to Gorakhpur for which she will be paid Rs.2000/- and the person did not tell his name to her. He had told her that he would meet her at Gorakhpur. While she was on way to Gorakhpur she was caught. The information of arrest was given on mobile phone to all concerned and sample of 60 grams was taken out from the recovered 'Charas' and the rest of the recovered contraband was kept inside the plastic bag and seal was appended on it. The sample was also sealed on the spot. No public witness was ready to testify to the fact of recovery. Memo of arrest and recovery was prepared on the spot and the police personnel Ram Tapasya and Dharmendra Kumar also made their signature on the recovery memo.

The accused-appellant Dhansari Magar was taken to the police station along with the recovered article/substance at Police Station-Sonauli. The contents of the recovery memo (Ext. Ka-3) were taken down in the concerned Check FIR at Case Crime No.845 of 2010 at 5:30 p.m. under Section-8/23 N.D.P.S. Act. Check FIR is Exhibit Ka-1. On the basis of entry made in the Check FIR, a case was registered at aforesaid crime number against accused under Section-8/23 N.D.P.S. Act on 27.11.2010 and the investigation ensued.

The investigation was taken over by the Investigating Officer Virendra Vikram Singh (PW-5) on 28.11.2010. He recorded the statement of various witnesses and took note of the contents of the Check FIR, the recovery memo and visited the spot where the arrest was effectuated and recovery was made and prepared the site plan Exhibit Ka-4. During investigation, he recorded statement of a number of persons including the lady constables and the sample was sent to the laboratory for analysis. The analyst's report was obtained wherein the analyst found the sample to be one of Charas. After completing the investigation, the investigating officer filed the charge-sheet against the accused-appellant as Exhibit. Ka-5.

Consequently, the Trial Court heard the accused-appellant and the prosecution on the point of charge and it was prima facie satisfied with the case against the accused-appellant, therefore, framed charge under Section-8/23 N.D.P.S. Act. The charge was read over and explained to the accused-appellant, who abjured the charge and opted for trial.

In turn, the prosecution produced in all five witnesses. A brief sketch of the same is as here under:-

Head Constable, Ram Nath Rawat (PW-1) has noted relevant entry in the Check FIR Exhibit Ka-1 and the relevant G.D. entry at Police Station Sonauli on 27.11.2010 at Case Crime No.845 of 2010 under Section 8/23 N.D.P.S. Act and has proved registration of case against the accused-appellant.

R.B. Sharma (PW-2) is the informant of this case. He is a witness of fact. He has proved fact of arrest and recovery made from accused-appellant.

Constable Ram Tapasya (PW-3) is a witness of fact and similar is testimony of Constable Geeta Kumari (PW-4).

S.I. Virendra Vikram Singh (PW-5) is the Investigating Officer. He has proved the investigation conducted by him in the case.

Thereafter, evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C. wherein she has termed her implication false and stated that she has been falsely implicated in this case. She claimed that no contraband/Charas was recovered from her, she is innocent.

The defence did not lead any evidence, whatsoever.

The Trial Court after appraisal of facts and circumstances of the case and after evaluating evidence on record, returned finding of conviction and sentenced the accused-appellant to ten years' rigorous imprisonment and awarded fine rupees one lakh with default stipulation to suffer additional imprisonment for one year.

Consequently, this appeal.

The learned amicus curiae has persuaded this Court that in this case, the mandatory provisions of Sections 50 and 42 of the N.D.P.S. Act have not been complied with by the police. There was no independent public witness to the fact of recovery. The sample was admittedly taken only from one of the recovered packets. On the opening of the sealed packet, 55 packets were counted by the Trial Court, whereas, the memo of recovery and arrest-Exhibit Ka-3- contains description of 13 packets only.

Once the compliance of Section 50 of the N.D.P.S. Act has not been done, the entire process fails. The sample was also not brought before any Court and no order was obtained from any Court for sending the same for chemical examination. The concerned Malkhana register wherein relevant entry of the substance recovered was made was not produced before the court below, therefore, the conviction recorded is in utter violation of the provisions contained in the N.D.P.S. Act.

In support of his case, learned amicus curiae has placed reliance on the citation - Arif Khan @ Agha Khan Vs. State of Uttarakhand 2018 Law Suit (SC) 420 - wherein under facts and circumstances, the Hon'ble Apex Court after recording its opinion held that search carried out in violation of the mandate contained under Section 50 N.D.P.S. Act vitiates the entire process and no conviction can be had on it.

Learned A.G.A. has replied to aforesaid contention by explaining various aspects - both factual and legal - and has claimed that the finding of conviction is consistent and based on material on record and just sentence has been awarded to the accused.

Also considered the rival submissions put forth by both the sides.

Upon consideration of the submissions and upon consideration of the claim raised by the appellant the moot point that arises for adjudication of this appeal hinges on plank whether the prosecution has been able to establish charge against the appellant beyond all reasonable doubt?

Before any factual aspect of this case is scrutinized, it would be suffice to take note of the arresting and recovery memo - Exhibit Ka-3 - which, on bare perusal, is indicative of fact that the entire search of accused Dhansari Devi was carried out basically by the two lady constables, on the alleged place of arrest in utter violation of the mandate contained under Section-50 of the N.D.P.S. Act, the reason being that there is no whisper and no description contained in the recovery memo either which may signify a single word or indicate that the lady on being apprehended by the police, ever spelt or uttered that she is carrying Charas. It is an invention made by the police party carrying out alleged search.

It so appears that the police became apprehensive and started search of the person of the accused and during course and sometime mid way of the search, she was informed that she has right to be searched in the presence of a gazetted officer or a magistrate. Even no consenting letter was prepared on the spot. This omission casts doubt on the genuineness of the claim made by the police party. This is gross violation of the mandate contained under Section 50 of the N.D.P.S. Act. Firstly, the search ought to have been carried out in the presence of either a gazetted officer or a magistrate and if not so, then consenting letter ought to have been prepared on the spot, which is not the case in hand. Insofar as the factum of personal search is concerned, Constable Geeta Kumari (PW-4) has not stated anything as to how she came to know that the accused-appellant was possessing the contraband (Charas). The accused did not spell anything that she was possessing contraband Charas.

Further, it is admitted position in this case that the recovered article/substance was found in 13 packets, but sample was admittedly taken only from one of the 13 packets. This factual aspect also vitiates the sampling process and procedure and it can be summed up that the sample so taken out is not credible and loses legal significance. Further, no Malkhana register was produced to show and establish fact that the recovered substance was in fact kept in safe custody at the Police 'Malkhana'. The constable who was employed to look after 'Malkhana' was also not produced by the prosecution in support of claim that the recovered substance was kept intact in safe custody.

Next, there is no proof as to on whose order the sample was sent for examination to the laboratory concerned at Ramnagar, Varanasi. Because of these apparent errors, it cannot be said that there was substantial compliance of mandate contained under Section 50 of the N.D.P.S. Act. Every factual aspect of this case is in disarray. The legal coherence which ought to have pervaded in the act and process of arrest and recovery is woefully missing. Even the investigating officer has not come out specifically about the details of the concerned 'Malkhana' register or about fact as to which Court/Authority was approached for sending the sample to the laboratory at Ramnagar, Varanasi. No worthy paper has been brought forth in this record.

The investigating officer has himself admitted in his testimony that he took sample from one of the 13 recovered packets. It is also a fact that the recovery memo describes 13 packets recovered from inside the bag, whereas 55 packets in all were found on opening the sealed packets in the trial court, which was allegedly sealed at the time of the seizure of the recovered substance. Out of 55 packets, 38 packets were small packets and 17 packets were big in size. He has gone to the extent of testifying that he did not record the statement of Constable Geeta Tiwari under Section 161 Cr.P.C. Because of the aforesaid facts, the prosecution has failed to inspire confidence in establishing fact of arrest and the fact of alleged recovery of contraband/Charas from accused-appellant Dhansari Magar.

Upon wholesome scrutiny of the testimony of all the prosecution witnesses and upon consideration of the fact situation as alleged by the prosecution witnesses, it is obvious that the whole story does not inspire confidence rather and it looks shaky and the same appears to be in sheer contrast to the procedure established by law in regard to arrest and seizure contemplated under various provisions of the N.D.P.S. Act.

In view of above, the aforesaid citation in the case of Arif Khan (supra) relied on by the counsel for the appellant applies in the instant case. Therefore, the contention raised by the counsel for the appellant are hereby sustained.

In view of above scrutiny and analysis of fact and law, it is discernible that the Trial Court while appraising facts and the circumstances of the case and evaluating the testimony on record erroneously misread the same and recorded conviction of the appellant overlooking the mandate contained in Section 50 of the N.D.P.S. Act. Therefore, the conviction recorded and the sentence awarded by the Trial Court in Special Case No.5 of 2011 (State Vs. Dhansari Magar), arising out of Case Crime No.845 of 2010, under Section 8/23 N.D.P.S. Act, Police Station Sonauli, District Maharajganj becomes erroneous and illegal as such and the same is set aside. In the final count, this appeal succeeds and the same is allowed. The appellant is exonerated of the charges.

In this case, the appellant is in jail. She be set at liberty forthwith if she is not wanted in connection with any other case.

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

Order Date :- 17.7.2018

S Rawat