Than Singh vs State Of U.P.
2018 Latest Caselaw 1703 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
                                                                          
 
Case :- CRIMINAL APPEAL No. - 2807 of 2013
 

 
Appellant :- Than Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rahul Chaturvedi,Ambar Khanna,Hemendra Pratap Singh,Neeraj Srivastava,Raj Kumar Khanna
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

By way of instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 25.04.2013 passed by Additional Sessions Judge, Court No.10, Mathura, in Special Session Trial No.119 of 2011 State Vs. Than Singh, arising out of Case Crime No.164 of 2011 under Sections 15 (C) N.D.P.S. Act, Police Station- Baldeo, District- Mathura, whereby the accused-appellant has been sentenced to undergo ten years rigorous imprisonment coupled with fine Rs.1,00,000/-, in default of payment of fine, he will have to undergo additional one year simple imprisonment.

Facts relevant for adjudication of this appeal are rooted in the arrest and recovery of the appellant on 03.07.2011 effectuated by the informant Sanjeev Kumar Tomar in company with his police personnels of Police Station Baldeo, District Mathura around 20:45 hours whereby 20 plastic bags/containers with 400kg. of Doda powder were recovered from possession of the accused-appellant near Hanuman Temple within vicinity of Village Akbargarhi. The place of occurrence is stated to be 7 kilometers away from Police Station. Report of the arrest and seizure of the aforesaid substance was alleged at 23:50 hours the very same day on 03.07.2011 by the informant Sanjeev Kumar Tomar with the description that he along with Constable Vinod Kumar, Constable Ajendra Singh, Constable Shiv Pratap, Constable Arun Kumar, Constable Arvind Kumar, Constable Nahar Singh departed for patrolling by Government Jeep U.P. 85 AG 0151. from Police Station vide G.D. No.37 at 20:05 hours in search of the wanted criminal. When they reached near Hanuman Temple in the village Akbargarhi they sighted the truck unloading some containers having some substances inside it and was being taken in a nearby room illuminated with candle light where a person with balance equipment, weight and measurement was weighing the plastic containers and one man was conveying containers from the truck to the nearby room and one man was helping another man by pushing plastic containers for it being shifted from the truck to the room.

As soon as the informant and the police personnels asked about the reason for such doing then - two persons - one who was conveying plastic containers and the other using the balance equipment in the room felt annoyed with the sight of the police and escaped away from the scene and in the process, one bag slipped out of the hand of the person who was using the balance equipment inside the nearby room. On checking the truck, one man was found inside the truck who on being asked about his name, spelt his name - Than Singh - resident of Village Akbargarhi, Police Station Baldeo, District Mathura.

On search being made, one knife was recovered from his possession apart from that bag/wallet which had slipped out of the hand of one of the accused and was lying on the spot, was also checked whereupon currency notes worth Rs.1,00,000/- of different denominations were recovered by the police. As search proceeded, ten containers each from the truck No. RJ 11 GA 1532 and the nearby room were recovered. On checking and smelling the substance kept inside plastic containers, it transpired that the same is noxious Doda powder.

It was told by accused-appellant Than Singh that the person from whose hand the wallet / bag slipped was Laxman who was weighing containers inside the room and he (Laxman) is owner of the truck and his associate was Chintu. Both Laxman and Chintu run transport company by name A.K. Transport at Mandi Crossing Mathura and the goods belonged to them. It was also disclosed that these goods were supplied at different hotels in the State of Bihar and purchasers of these substances usually come and purchase these substances.

The accused-appellant told that he is driver of the truck, he usually supplies these substances to different owners. Laxman and Chintu usually unload the truck in this room which is used as a godown. He also disclosed that some customers had purchased these substances shortly before arrival of the police and they have left. He further told that money/currency recovered from the wallet is the sale price of commodity/contraband. He also described the substance to be Doda powder noxious substance and apologized to the police for his act. Some silver metal plates were kept inside the truck, document regarding the same was in possession of the accused-appellant.

Since the recovery related to offence under the Arms Act and N.D.P.S. Act, the accused-appellant was asked whether he is interested in his search being made in presence of a Magistrate or a gazetted officer, whereupon he declined the offer and reposed faith in the police party for being searched. Memo of arrest and seizure was made at 20:45 hours on 03.07.2011 and the accused-appellant was taken into custody and the plastic containers were weighed whereupon the different weights were noted in relation to the recovered containers. therein. The recovered substance was kept under seal and the police party also searched for the two escaped accused Laxman and Chintu but could not find them. Memo of arrest and recovery was prepared on the spot. In the last line of this memo, it has been described that a sample of 50 gram from each recovered packet (numbering 20 in all) was taken out and sealed. This arrest and recovery memo is Ext. Ka-1.

The investigation took pace and the same entrusted to B.L. Bharti PW-5 who in fact started investigation on 16.07.2011 and in his absence, some other S.I. took stock of the situation and made relevant entry and progressed the investigation up to 16.07.2011. PW-5 also recorded statement of various prosecution witnesses including the police party which effectuated the arrest and recovery on 03.07.2011. He also prepared site plan Ext. Ka-7. He has also proved fact that sample of 100 gram was also sent to the analyst for chemical examination. However, this aspect of the case is inconsonance with the record of the entire case on procedural point.

During course of the investigation, PW-5 was transferred, therefore, the investigation was handed to another Investigating Officer, S.I. Raghvendra Singh PW-6 who took over the investigation on 09.08.2011. He has stated in his examination in chief that previous Station House Officer did nothing in the case. However, he took note of the contents of the case diary and chemical examination report Ext. Ka-9 was received during his tenure as the Investigating Officer. After completing the investigation, he filed charge sheet Ext. Ka-10 against the accused-appellant.

Consequently, the accused-appellant was heard on the point of charge whereupon he was charged under Section 20 (11) (C) N.D.P.S. Act besides Section 15 (C) N.D.P.S. Act. Charges were read over and explained to the accused-appellant who abjured the charges and opted for trial.

The prosecution, in order to prove guilt of the accused examined as many as six witnesses, a brief reference of them is as hereunder:

S.I. Vinod Kumar PW-1 is witness of recovery and arrest. Constable Chandra Prakash Pachauri PW-2 has noted contents in the Check FIR and the concerned general diary as Ext. Ka-3 and Ext. Ka-4, respectively. Constable Arvind Singh PW-3 took sample for chemical examination to the forensic laboratory. He was also a member of the police patrolling party and is also witness of fact. S.I. Sanjeev Kumar Tomar PW-4 is the informant. He headed the police party and effectuated the recovery and arrest and prepared the memo of the same as Ext. Ka-1. S.I. Bachchan Lal Bharti PW-5 has investigated part of the case pertaining to the Arms Act and has filed charge sheet under the Arms Act. Therefore, his testimony is of no consequence for adjudication of this appeal at this stage. However, he has also testified on factual aspects of the case. S.I. Raghvendra Singh PW-6 is the Investigating Officer who filed charge sheet after completing the investigation which was left over by the previous Investigating Officer.

Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, he has claimed to have been falsely implicated in this case and has stated that he was not driver of truck No. RJ 11 GA 1532 but he was driver of truck No. M.P. 06 5582. Both these vehicles are owned by Laxman. On 02.07.2011, he left the owner of truck M.P. 06 5582 at his home and went to spread urea fertilizers in the millet field. On 04.07.2011, his master (truck owner) called him at Police Station Baldeo and got him detained there. Recovery was made from him. It is incorrect to say that he was caught in the village Akbargarhi along with truck No. RJ 11 GA 1532.

No evidence, whatsoever, was led by the defence.

The learned Additional Sessions Judge, after appraisal of facts and merit of the case and evaluation of the evidence on record, returned aforesaid finding of conviction under Sections 15 (C) N.D.P.S. Act and sentenced the appellant to undergo ten years rigorous imprisonment coupled with fine Rs.1,00,000/-, in default of payment of fine, he will have to undergo additional one year simple imprisonment

Resultantly, this appeal.

While assailing the various factual as well as legal aspects of this case, learned counsel for the appellant has engaged attention of this Court to the part of the testimony of several prosecution witnesses and claimed that sampling process was not duly proved on the point that the sample was correctly preserved according to the Rules in some safe custody but the sample was manipulated by none other than the informant S.I. Sanjeev Kumar Tomar PW-4 himself, who has tampered with specific piece of testimony without any authority and without any order of his superiors or supervision of the higher authority while he himself claimed to have separated 100 grams of substance from rest of the sample but he neither made any entry in the case diary nor any such reference was ever entered in any relevant document. This particular factual aspect by itself puts things in dark and the very veracity and integrity of the sample sent for chemical examination does not make out any case against the accused-appellant notwithstanding the report being that of Doda powder because very authenticity of the sample sent clandestinely for chemical examination was against the Rules and provisions prescribed for preserving and sending the sample were not followed.

Apart from that, learned counsel for the appellant has claimed that mandatory provision of search under Section 50 of N.D.P.S. Act has not been complied with. Testimony of the prosecution witnesses is on the face of it contradictory to the facts of the case. The trial court was not justified in recording the finding of conviction against the appellant and imposing the sentence on him.

While retorting to aforesaid contention, learned AGA has submitted that in this case, testimony of the prosecution witnesses inspires confidence and there is no reason to disbelieve the same as that would amount to brushing aside cogent testimony merely on some trifle lapse procedural attributed to the Investigating Officer. It is established law that mistake committed during investigation by the Investigating Officer would not amount to throwing away the case of the prosecution. Evidence on record profusely indicates involvement and complicity of the accused-appellant in the occurrence. The trial court has taken correct view of law and facts and has justifiably recorded conviction against the accused-appellant.

Also considered the above submissions and also considered claim of the accused-appellant. Point for determination of this appeal, basically relates to fact whether the prosecution has been able to prove its case and particularly the occurrence and consequently charge beyond all reasonable doubt against the accused-appellant?

Before scrutiny of legal and factual aspect of the case on merits is entered, it would be relevant to take stock of the situation leading to arrest of the accused-appellant and consequent recovery. It so happened that Sanjeev Kumar Tomar PW-4 the informant was on patrolling duty on 03.07.2011. He suddenly noticed a stationary truck parked near Hanuman Temple in the village Akbargahi in the night around 20:45 hours and also noticed movement of certain persons who were working inside and around the truck. He noticed movement of a person conveying plastic containers from truck to the adjoining room where one person was weighing these plastic containers with weighing equipment. One person was also pushing plastic containers from truck to another person who conveyed it to the nearby room.

On being quizzed the person who was inside the room and the person who was conveying plastic containers escaped from the scene and in the process one bag slipped out of the hand of that person (fleeing from inside the room) which was recovered by the police wherein currency notes of various denominations worth Rs.1,00,000/- were found. The substance kept inside the 20 plastic containers was found to be noxious Doda powder on smelling the same by the informant as well as the other members of the police party.

The seizure memo was also prepared on the spot and 50 grams of sample was taken out from each of the 20 containers. The search of the accused was also made after he was suggested that he may be searched in the presence of the Magistrate or a gazette officer. The suggestion was declined. However, he reposed faith in the police for being searched. The entire case has its base on arrest and recovery and the sampling done on the spot.

Now the point as reflected becomes uncontrovertable to the ambit that the sample which (1000 gms) was kept at the police station was initially sent for chemical examination in the first instance when the authorities concerned at the laboratory directed the concerned police constable to take back the sample which was weighing 1000 grams and instructed him to bring the sample in the quantity of 100 grams only. At this, the sample was returned to the police station.

It so happened that S.I. Sanjeev Kumar Tomar PW-4 the informant - himself without any authority, rhyme or reason took out 100 grams of sample out of the previous sample and managed to send it to the forensic laboratory. Not only this PW-4 but also the other prosecution witnesses were questioned on the point of any write up, entry or note about this very activity of taking out of 100 grams of sample from the original sample then it transpires that no entry, whatsoever, was ever made regarding this clandestine activity. It means that the sample in the quantity of 100 grams was taken out without any authority neither in presence of any superior officer nor in the presence of the Investigating Officer. No entry was made in the case diary regarding this process though the prosecution witnesses have tried to do away with the explanation. However, that explanation was absolutely false and they are trying to save the situation.

The result is that the entire sample becomes doubtful as to how it was preserved and in what condition it was so preserved, how it was so accessed by the informant and by what authority he himself acted like the Investigating Officer and it is not clear as to by what means he weighed the sample to be 100 grams. Once the sample taken is not preserved properly and its integrity becomes doubtful then report obtained on chemical examination of the substance would not be admissible and read against the accused-appellant. The outcome is that it is not proved as to what, in fact, was recovered by the police on the spot and what same was prepared. If this is uncontroverted truth in this case then no other detail need be elaborated at this stage so as to test overall merit of the case.

Apart from that, the prosecution witnesses have also admitted fact that consenting letter for carrying out search of the accused-appellant was prepared by the police after memo of arrest and recovery had been prepared by the police. This specific testimony of Constable Arvind Singh PW-3 appears on page no.32 of the paper-book, which also goes to show that things were not done in proper way and in the manner prescribed by law. Therefore, this aspect also throws doubt on the authenticity of the arrest and recovery memo itself.

Because of these specific reasons, the entire process is vitiated in the eye of law as no credence can be given to the prosecution that the sample was kept in tact and it was duly sent after complying with due procedure. How the police came to know about noxious substances being Doda powder is also not certain.

In view of above, mandatory provisions of N.D.P.S. Act have not been complied with and the entire process is vitiated in the present case as compliance of provisions of N.D.P.S. Act is pre-requisite for recording the conviction against the accused-appellant. In this case, mandatory compliance has not been ensured but things have been handled in whimsical and arbitrary manner without any rhyme or reason and to the detriment of the accused-appellant.

Therefore, impugned judgment and order of conviction dated 25.04.2013 passed by Additional Sessions Judge, Court No.10, Mathura, in Special Session Trial No.119 of 2011 State Vs. Than Singh, arising out of Case Crime No.164 of 2011 under Sections 15 (C) N.D.P.S. Act, Police Station- Baldeo, District- Mathura, is hereby set aside.

Accused-appellant is acquitted of charge as above.

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

In this case, the appellant is in jail. He shall be released forthwith unless and until he is wanted in connection with any other case. 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 :- 25.07.2018

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