Manoj vs State Of U.P.
2018 Latest Caselaw 3528 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 42
 
                                      AFR
 
Case :- CRIMINAL APPEAL No. - 2022 of 2015
 

 
Appellant :- Manoj
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajesh Kumar Yadav,Anant Ram Gupta
 
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 20.04.2015 passed by the Additional Sessions Judge, Court No.6, Mainpuri, in Special Session Trial No.14 of 2013 State Vs. Manoj, arising out of Case Crime No.189 of 2013 under Sections 8/21(1)(C) N.D.P.S. Act, Police Station- Bevar, District- Mainpuri, 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 two years rigorous imprisonment.

Heard Sri Anant Ram Gupta, learned counsel for the appellant, Sri Pankaj Srivastava, learned A.G.A. for the State and perused the record.

Facts relevant for adjudication of this appeal appear to be that the first information report was lodged by Sub-Inspector Rajesh Kumar at Case Crime No.189 of 2013 under Section 8/20 N.D.P.S. Act, on 17.05.2013 at 23:45 hours at Police Station Bevar, District Mainpuri, against the accused-appellant Manoj son of Om Prakash Gupta. On the basis of the recovery and arresting memo which contained description that S.I. Rajesh Kumar accompanied by Constable Rashid Khan and Constable Manoj Kumar of Police Station Bevar were on patrolling duty in the region within their police circle. While busy in patrolling, the police party arrived at Mathiya tri-crossing at Etawah road Chungi and proceeding towards Chhibaramau Chungi, when a person was sighted by it, coming from township (Kasba) who turned to his back on the sight of the police party whereupon the police party became suspect of him and he was asked to stop but he did not respond instead increased his stride then S.I. Rajesh Kumar in company with his two colleagues and passerby apprehended him around 10:30 p.m., when asked as to why he was running away and what is his name then he spelt his name as Manoj Kumar son of Om Prakash Gupta, resident of Sabji Mandi, Kaji Tola and told that he is possessing powder Smack, therefore, he was running away. At this disclosure, the Sub-Inspector upon being apprised of this specific information offered him the choice that he can get himself searched in the presence of either a Gazetted Officer or a Magistrate whereupon the accused-appellant declined the offer and reposed faith in the police party itself for being searched. Consequent thereupon, consenting letter was prepared by the police on the spot which was signed by the accused-appellant and S.I. Rajesh Kumar. The police party prior to carrying out the search carried out inter-se search of themselves. Nothing objectionable was found from their possession.

S.I. Rajesh Kumar carried out search of the accused-appellant whereupon a bag/wallet was recovered from right hand of the accused-appellant when it was opened then light green colour powder wrapped in a paper sheet was recovered. When asked about the powder, accused-appellant Manoj disclosed that this is noxious powder Smack. The recovered substance was weighed on the electronic equipment then it weighed 500 grams inclusive of the paper sheet. When asked about any authority to keep the same, nothing could be shown by the accused-appellant.

Considering the act of the accused-appellant for committing the offence under Section 8/20 N.D.P.S. Act, he was apprised of the offence. 100 grams of substance was taken out of the recovered substance and the rest of the substance was kept under seal and the sample taken out was also sealed on the spot. Memo of recovery and arrest was prepared and signature of the persons present on the spot were obtained on it and it was described in this memo that the information of arrest shall be given to higher authorities and others after reaching the police station.

Relevant entry was made in the concerned general diary and the investigation of this case ensued and the same was taken over by S.I. Jagpal Singh PW-4 who recorded statement of the prosecution witnesses and at the instance of the informant, prepared the site plan Ext. Ka-5 and after completing the investigation, filed the charge sheet Ext. Ka-6 against the accused-appellant. He has also obtained forensic examination report of the contraband substance and took note of the same.

Consequently, the Additional Sessions Judge, Mainpuri took cognizance of the offence and the accused-appellant was charged under Section 18/21 N.D.P.S. Act. Charge was read over and explained to the accused-appellant who abjured charge and claimed to be tried.

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

Sub-Inspector Rajesh Kumar PW-1 is the informant. Constable Rashid Khan is PW-2 and Head Muharrir Roshan Lal is PW-3. Sub-Inspector Jagpal Singh PW-4 is the Investigating Officer who filed charge sheet against the accused-appellant after completing the investigation. Constable Manoj Kumar PW-5 is a member of the police party at the time of the arrest and recovery.

Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, he claimed several grounds for his false implication and denied fact of any recovery having been made from him. He has stated that Constable Manoj Kumar and Constable Rashid Khan had misbehaved with one lady Rekha wherein the accused-appellant was witness of the incident and due to this enmity, the police became inimical to him and he has been falsely implicated in this case. He has also stated that he was arrested by the police from his house.

The defence has produced Sushil Mishra as DW-1.

The learned Additional Sessions Judge, Court No.6, Mainpuri after appraisal of facts and vetting merit of the case and evaluation of the evidence on record, returned aforesaid finding of conviction under Section 8/21(1)(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 two years rigorous imprisonment, which paved way for this appeal.

It has been contended by learned counsel for the accused-appellant that in this case, mandatory requirement of Section 50 of N.D.P.S. Act has not been complied with as no independent public witness has testified to the fact of arrest and recovery although the arrest and recovery was effectuated only on such a busy place - which is hub of business activity. The availability of weighing equipment on the spot is a devised thought in order to meet mandatory requirement of weighing the substance.

Fact is that the appellant was taken away by the police on 17.05.2013 at 12:00 noon from his home and he has been falsely roped in, in this case, for the reason that Smt. Asha, wife of the accused-appellant was teased by one Constable Manoj Kumar, regarding which a complaint was made and inquiry was underway, therefore, the police personnel of Police Station Bevar were inimical towards the accused-appellant and with a view to teach him a lesson, the police personnel falsely implicated the appellant in this case and planted recovery.

Lastly contended that assuming it to be that every evidence stands proved, then there is no proof as to on whose direction, the sample was taken to the Forensic Science Laboratory for examination and this by itself is self explanatory of suspicious and circumvented manoeuvoring done by the police in order to falsely implicate the accused-appellant. In absence of proof of safe conveyance of the same and fact as to who permitted the sample to be taken to the Forensic Science Laboratory, the forensic report loses its force and becomes insignificant.

Testimony of the prosecution witnesses is on the face of it contradictory on material points of the case. The trial court was not justified in recording finding of conviction against the appellant and imposing the sentence on him.

While retorting to aforesaid contention, learned A.G.A. has elaborated that in this case, all the requirements of the provisions of the N.D.P.S. Act have been gone into and have been satisfactorily proved by the statement of the prosecution witnesses. Recovery of the Smack is reported against the accused-appellant which substance on examination has been found to be Smack. The sample was sent for examination after sending application to the Circle Officer concerned and the chemical examination report was obtained from the Forensic Science Laboratory.

Evidence on record abundantly 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 fact of recovery and consequently the charge under consideration beyond all reasonable doubt against the accused-appellant?

At the very outset, it is gathered that on 17.05.2013, the accused-appellant was arrested by the police around 10:30 p.m. in township Bevar near Chungi/Chhibaramau outpost, in district Mainpuri whereby on search being made out from the accused-appellant, 500 grams of contraband /noxious substance was recovered, the accused-appellant could not show any authority to keep the same. Consequently, the accused-appellant was challaned under Section 18/20 N.D.P.S. Act and was charged under Section 18/21 N.D.P.S. Act, by the trial court.

As per recovery memo Ext. Ka-2, the police party led by S.I. Rajesh Kumar accompanied by Constable Rashid Khan and Manoj Kumar were busy in patrolling duty and were passing through Mathiya tri-crossing at Etawah road outpost to Chhibaramua outpost. As soon as the police party reached near Chungi outpost, they sighted a man coming from township side who at the sight of the police, got startled and turned back increasing his speed. This created suspicion and the police party intercepted him and he was apprehended around 10:30 p.m. While asked about his name, he spelt his name as Manoj Kumar son of Om Prakash Gupta, resident of Sabji Mandi, Kaji Tola, Mainpuri. He told that he is possessing contraband Smack, therefore, he was fleeing away from the scene.

At this, the accused-appellant was offered option to be searched in the presence of a Gazette Officer or a Magistrate but the accused-appellant declined the offer and reposed faith in the police party itself for search being made. Thereafter, consenting letter was prepared and the police party inter-se searched each other and after ensuring that they are not possessing any such substance or contraband carried out search. S.I. Rajesh Kumar made out search, whereupon, a bag was recovered from the right hand of the accused-appellant wherein some light green colour powder being wrapped in a newspaper sheet was found. The accused-appellant told that this noxious substance is Smack.

It has been described that electronic equipment was taken out from the pocket but from whose pocket, it was taken out, has not been described and the recovered substance was weighed, whereupon, it aggregated 500 grams along with the paper sheet. The accused-appellant could not show any authority to keep the same, therefore, he was arrested after being informed that his act falls within the ambit of Section 18/20 N.D.P.S. Act. 100 grams of substance was separated from the recovered substance for sampling. The sample and the rest of the substance were kept under separate packets and a memo was prepared and after reading over the contents thereof to the accused-appellant and the police personnel present over there, signature of all were obtained on it.

Further, it is gathered that the report of Forensic Science Laboratory at Agra indicates that the sample after examination was found to be Smack (Heroin). Insofar as the contention regarding non-compliance of Section 50 of the N.D.P.S. Act is concerned, the fact of non-compliance is not attracted in this case, for the reason that the contraband was recovered from bag/wallet held by the accused-appellant in his right hand.

Moreover, the compliance of Section 50 of N.D.P.S. Act has been made insofar as option for being searched was extended to the accused-appellant for making his search before any Gazette Officer or a Magistrate, which was declined and the accused-appellant agreed to be searched by the police party itself. Thereafter, the police party inter-se carried out search among themselves and asserted that nothing objectionable of the nature like the present recovered substance was being possessed by any of the police personnel.

It has been stated that the search was made out after consenting letter was prepared by the police party. But there are certain shortcoming as per testimony of Constable Manoj Yadav PW-5 who was one of the members of the police party on 17.05.2013 when the arrest was effectuated and the recovery memo was prepared by the police. On page no.35 of the paper-book in his cross examination, he has specifically stated that consenting letter was singed by the accused-appellant after the recovered material was kept under seal. It means that the informant did not comply with the necessary requirement of the provisions of N.D.P.S. Act as claimed by him and he acted arbitrarily as per his wishes and completed formality in irregular and erroneous manner.

It is also discovered and established as per testimony of the Investigating Officer, S.I. Jagpal Singh PW-4 that insofar as his testimony in examination in chief is concerned, he has described details of the investigation as the Investigating Officer. Regarding the safe conveyance of sample being sent for examination to the Forensic Science Laboratory, his testimony is not inspiring confidence in the sense that the sample was sent to the Forensic Science Laboratory in intact and safe position and it was the same sample which was taken out and collected by the informant on the spot and there was no possibility of tampering with the sample sent to the Forensic Science Laboratory on 10.06.2013. Though claim has been made by the Investigating Officer that the sample was sent, but no permission was obtained either from the court or the authority concerned as no proof of the same has been produced by the prosecution.

The Investigating Officer has proceeded to say qua permission that he had written a letter for obtaining the permission to the Circle Officer and the form which was sent for obtaining permission but photocopy thereof has not been placed on record. Even contents of such letter sent to the Circle Officer were not noted/described in the case diary. This by itself creates serious dent in the prosecution story and vacuum is created on the point as to on whose instance and on whose permission, the sample collected on 17.05.2013 was sent on 10.06.2013 in safe and intact position to the Forensic Science Laboratory.

That way, the very authenticity of the sample and its safe conveyance itself becomes dubious. Consequently, it can be observed that there is no proof about the nature of the substance allegedly recovered from the possession of the accused-appellant on 17.05.2013 at 10:30 p.m. from township Bevar and it can not be said with certainty that the recovered substance was Smack (Heroin).

This being fact position, suggestion mooted by the defence that prior to this incident, a complaint against a police constable was made regarding teasing of the wife of the accused-appellant wherein inquiry was underway - gathers force as the motivating cause for false implication of the accused and the prosecution was not able to deny the claim raised to that extent by the defence.

It was incumbent upon the prosecution to have specifically proved fact of sending the sample of the recovered substance in safe condition to the Forensic Science Laboratory. Neither the constable who conveyed the sample to the Forensic Science Laboratory has been produced by the prosecution before the trial court nor permission obtained in this regard from the Circle Officer as claimed by the Investigating Officer PW-4 has been satisfactorily proved by the prosecution. On account of such failure, the prosecution has failed to establish the charge beyond reasonable doubt.

It is noticeable that in the matter of cases under the provisions of N.D.P.S. Act, the burden of proof is shifted on the accused-appellant, after certain aspects of the case are first proved by the prosecution. Here in the case in hand the shortcoming and lacunae emerge incontrovertibly in the proof of the prosecution in the first stage case. Thus, the factual aspects relating to such shortcomings as discussed above were not property scrutinized by the trial court.

The trial court merely concentrated and acted on the recovery memo and the statement of the prosecution witnesses, particularly, the informant and the Investigating Officer who failed to come out specifically on the point of safe conveyance of the sample sent for examination to the Forensic Science Laboratory and the required permission therefor from the competent authority or the Court or higher authority. Sample must be proved to have been safely conveyed and it was sent after obtaining permission from the authority concerned.

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. 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 and cannot be approved in its present form.

Therefore, the judgment and order of conviction dated 20.04.2015 passed by the Additional Sessions Judge, Court No.6, Mainpuri, in Special Session Trial No.14 of 2013 State Vs. Manoj, arising out of Case Crime No.189 of 2013 under Sections 8/21(1)(C) N.D.P.S. Act, Police Station- Bevar, District- Mainpuri, is hereby set aside.

Accused-appellant is acquitted of the 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 :- 02.11.2018

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