Rajesh Patel vs State Of U.P.
2018 Latest Caselaw 969 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 18.04.2018
 
Delivered on 28.05.2018
 

 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL No. - 5146 of 2010
 

 
Appellant :- Rajesh Patel
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Vikrant Pandey,Dileep Kumar,Jitendra Kumar Dwivedi,Rajiv Lochan Shukla
 
Counsel for Respondent :- Govt. Advocate,S.K.Singh
 
Connected with 
 
Case :- CRIMINAL APPEAL No. - 5031 of 2010
 

 
Appellant :- Ravindra Tiwari
 
Respondent :- State Of U.P. & Anr.
 
Counsel for Appellant :- Rupak Chaubey,Amit Kumar Srivastava,Dileep Kumar
 
Counsel for Respondent :- Govt.Advocate,Sanjay K Singh
 

 

 
Hon'ble Rajiv Lochan Mehrotra,J.

[1] Heard learned counsel for the appellants, learned A.G.A. for the State and perused the record.

[2] As both the abovesaid criminal appeals are directed against the same judgment and order arising out of the same Criminal Case No. 121 of 2006, they are being disposed of by the common judgment.

[3] The present appeal has been preferred against the judgment and order dated 27.07.2010 passed by Additional Sessions Judge, Court No. 2, Varanasi in Criminal Case No. 121 of 2006 police station-N.C.B. District-Varanasi thereby convicting each of the appellant for ten years rigorous imprisonment and a fine of Rs. 50,000/- under Section 22(B) of N.D.P.S. Act.

[4] The facts of the case in brief are that on 22.08.2006, a criminal complaint was filed by Mr. S.K. Singh, Intelligence Officer, N.C.B, Varanasi in the court of Sessions Judge, Varanasi with the averments therein that on 08.03.2006, a secret information was received to the effect that the appellants were about to deliver a huge quantity of Nitrazepam tablets to someone near Lehartara Railway Crossing. The said information was pen down. After forwarding the said information to the Senior Officers, a team consisting Jitendra Singh, B.K. Shukla, Y.S. Yadav, P.S. Pannu (O.T.C.), B.L. Bangdi (T.A.), Rajiv Singh(U.D.C) and N.S. Mapwal(U.D.C) was formed and thenafter entire team moved towards the place of occurrence via official vehicle and reached there at about 11:00 am. Ramadhar Mishra and Ashok Yadav, two policemen agreed to become witness in the matter. After sometime, two persons coming on a Hero Honda Splendor Motorcycle bearing registration no. BR 9/7279 were noticed by the team. They were checked. The driver disclosed his name as Ravindra Tiwari while the pillion rider having black colour bag with him disclosed his name as Rajesh Kumar Patel. They were apprised their right as enshrined under Section 50 of the N.D.P.S. Act to the effect that in case, they so wish, they may be searched before a Magistrate or a Gazetted Officer. But both of them expressed their trust over the raiding team and gave their consent in writing to this effect. They were searched. The black colour bag, in possession of Rajesh Patel, was opened wherein 44 boxes having 10 stripes in each box with 50 tab in each strip of Nitrazepam-10 were recovered. Out of the recovered boxes, 41 boxes were sealed separately while three boxes were sealed separately. The accused persons were asked to show the license for having the said narcotic contraband but they failed to produce the same. The total weight of the Nitrazepam recovered on the spot was found as 220 gm. Two strips having 50 tab each were taken as sample and representative sample and were kept in two different sealed envelopes. These envelopes were marked as A1 and A2. Envelope A1 was sent for chemical examination while rest of the tablets were sealed inside the boxes in which there were recovered.

[5] The recovery memo was prepared on the spot. Both the accused persons were taken into custody. They informed the team that they have collected these narcotic contraband from Jagdish Medical Store, Lohta, Varanasi.

[6] After completing all the formalities, the accused persons along with the recovered article were brought before the Remand Magistrate from where they were sent to the District Jail. The recovered article was kept in the godown of N.C.B. Office. Search, seizure and arrest report were forwarded to the Senior Officers.

[7] Initially, the Forensic Lab returned the sample received by it on the technical ground that in the forwarding letter, the office had mentioned the enclosure of two envelopes as A1 and A2 while the laboratory received only one envelope as A1. Later on, the Forwarding Officer, after correcting his mistake, forwarded one envelope A1 for verification and vide report dated 12.07.2006, the Forensic Lab confirmed the sample sent as Nitrazepam.

[8] Complaint, so filed before Sessions Judge, Varanasi was registered and cognizance thereon was taken on 22.08.2006. A charge under Section 8/22/27-A/29 of the N.D.P.S. Act was framed against the appellants which they denied and claimed trial.

[9] In order to prove the charge, prosecution examined PW-1, Jitendra Singh and PW-3, Yogendra Singh as witnesses of facts while PW-2, S.K. Singh investigated the matter and submitted its report.

[10] Statements of appellants under Section 313 Cr.P.C. were recorded wherein they denied any sort of recovery from their possession and said that witnesses have falsely deposed against them. From the side of the appellant, Rajesh Kumar Patel has been examined as DW-1, Munna Lal as DW-2 and Smt. Durgawati Devi as DW-3.

[11] In the instant case, the appellants were arrested by a team of Intelligence Officers, N.C.B., Varanasi. The statements of the appellants were recorded under Section 67 of the N.D.P.S. Act wherein they have confessed their guilt. It is specifically averred by PW-1, Jitendra Singh, the Intelligence Officer, N.C.B that at the time of occurrence, the appellant-Ravindra Tiwari was driving the motorcycle while Rajesh Patel was a pillion rider having a black colour bag in his hand. After obtaining their consent, they were searched by the team. 44 boxes of Nitrazepam-10 having 10 strips in each box containing 50 tablets in each strip were recovered inside the bag held by Rajesh Kumar Patel. After completing all the formalities and after ascertaining that the act of the appellants comes under the offence covered under the Narcotic Act, the appellants were taken into custody and the information to this effect was forwarded to the Senior Officers as required under Section 57 of the N.D.P.S. Act.

[12] In the cross-examination, PW-1, Jitendra Singh admitted that he received the information to the effect that some persons were carrying the narcotic contraband via some vehicle and the names and addresses of the accused persons were also told by the informant and this witness moved for the place of occurrence as informed by the informer at about 10:30 am which was about 5 to 6 km away from the police station.

[13] It is argued on behalf of the appellants that it is nowhere mentioned in the statement of PW-1, Jitendra Singh that the informer had also disclosed him the description of the conveyance by which the appellants were to travel. Then how the motorcycle number comes under the picture in the Ex. Ka-1 i.e. the information forwarded to the Zonal Director and Director General, N.C.B. New Delhi.

[14] The contention of the appellant is not tenable because the said information was forwarded after arrest of the appellants. Moreover, the appellants were produced before the trial court/Remand Judge on 09.03.2006. It is next contended by learned counsel for the appellant that seal of sample was not forwarded to the forensic lab rather its FAX copy was sent. It is nowhere disputed by forensic lab that it did not receive the original seal. After receiving the sample, Assistant Chemical Examiner of the lab described the details in his report which are as follows :-

"Received one sample packet marked as A-1 is in sealed and intact condition. The sample is sealed with 7 LAC seals. The impression of taking out sample from strong room for analysis, the sample packet marked as A-1 is in sealed and intact condition. Impression of each seal affixed on the sample packet tallies with the facsimile of seal as given on test memo. "

[15] Thus, there remains no dispute about the authenticity of seal affixed on the sample. It is also contended by learned counsel for the appellants that independent witness, though cited in the recovery memo and the statements of whom were recorded under Section 67 of the N.D.P.S Act, could not be produced by the prosecution during the course of trial. As per settled law, examination of independent witnesses is not much necessary particularly in the cases tried under N.D.P.S. Act. It is next contended that as per recovery memo and the evidence available on record, 44 boxes of Nitrazepam-10 having 10 strips in each were recovered from the possession of the accused but only one strip from only one box containing 50 tablets was sent to the forensic lab for verification. The Forensic Lab also confirmed this fact that only one strip containing 50 tablets was sent to it for verification. As per calculation, the weight of one box containing 10 strips comes to 5 gm only. The statement of Ram Adhar Mishra recorded under Section 67 is also available on record showing therein that only two sample were separated from the recovered article. PW-1, Jitendra Singh also admitted that two strips from one box were taken on the spot which were sealed separately and thenafter sent to the Forensic Lab for verification. Thus, as per admission of the prosecution witnesses, only one box containing 10 strips was verified by the Forensic Lab wherein only 5 gm Nitrazepam-10 in total was available. Therefore, at the most, the appellants can be convicted for having narcotic contraband up to the weight of 5 gm only. The schedule appended to the Act makes it clear that recovery up to 20 gm of Nitrazepam comes under the head 'small quantity'.

[16] Hon'ble the Apex Court in "Gaunter Edwin Kircher Vs. State of Goa AIR LAWS(SC)-1993-3-11" has clearly observed in paragraph no. 3 that samples of entire recovered goods should be sent to forensic lab, some part of para 3 is extracted hereinunder :-

"The failure to send the other piece has given rise to this inference. We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable, in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law."

[17] The Allahabad High Court in "Raju Gurang Vs. Union of India LAWS(all)-2007-2-183" has also observed the same principle.

[18] It is contended on behalf of appellant-Ravindra Tiwari that being a driver of motorcycle at the time of arrest, he was not in conscious possession of narcotic drug which Rajesh Kumar Patel had, therefore, he be not held guilty for the offence.

[19] The argument advanced by learned counsel for the appellant is not tenable. As per their statements recorded under Section 67 of the N.D.P.S. Act as well as the oral evidence available on record, it is proved beyond reasonable doubt that the appellant Ravindra Tiwari was also having full knowledge of the fact that Rajesh Kumar Patel was having narcotic contraband in his bag.

[20] Thus, it is clear that recovery with regard to 5 gm of Nitrazepam has been proved against the appellants beyond doubt. Hence, they can be punished only for the said recovery which comes under the head of small quantity as mentioned in the Schedule of N.D.P.S. Act.

[21] On the basis of above discussion, it is clear that the prosecution has proved its case against the appellant beyond reasonable doubt but so far as the weight of the recovered Nitrazepam is concerned, the prosecution could prove the possession of only 5 gm Nitrazepam beyond reasonable doubt. The punishment for possession of 5 gm Nitrazepam comes under Section 22(a) of N.D.P.S. Act wherein it is specifically provided that the sentence under this head may be extended to one year rigorous imprisonment or with fine which may extend to Rs.10,000/- or with both. However, in the present circumstances, keeping in view the proved possession of 5 gm Nitrazepam, it shall be justified to award a sentence of six months rigorous imprisonment coupled with a fine of Rs. 5,000/- to each appellant.

[22] In these circumstances, the appeal is liable to be partly allowed and is partly allowed. The finding with regard to conviction recorded against the appellant under Section 22 of N.D.P.S. Act is hereby maintained and affirmed. However, seeing the nature of offence and the quantity of possessed and proved Nitrazepam, the sentence awarded by the trial court is now modified and the appellants are convicted under Section 22(a) of the N.D.P.S. Act and in consequence thereof, the sentence awarded by the trial court is reduced from 10 years to six months rigorous imprisonment coupled with a fine of Rs.5,000/- only for each appellant and in default of payment of fine, the appellants shall have to undergo further one month imprisonment. The appellants are also entitled to avail the benefit of Section 428 Cr.P.C.

[23] Let a copy of this judgment along with the record of the case be sent back to the court below for needful action and necessary entries in the relevant registers.

Order Date :- 28.05.2018

Sumit S