Raju Prasad And Another vs State
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 42
 
                                      AFR
 
Case :- CRIMINAL APPEAL No. - 106 of 1991
 

 
Appellant :- Raju Prasad and another
 
Respondent :- State
 
Counsel for Appellant :- Shashank Shekhar
 
Counsel for Respondent :- A.G.A.
 

 

 
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 04.01.1991 passed by the VI-Additional Sessions Judge /Special Judge, (DAA) Etawah, in Session Trial No.55 of 1990 State Vs. Raju Prasad and another, arising out of Case Crime Nos.187 and 188 of 1989 under Section 22 Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station- G.R.P. Etawah, District- Etawah, whereby the accused-appellants have been sentenced to undergo ten years rigorous imprisonment coupled with fine Rs.1,00,000/- each, in default of payment of fine, they will have to undergo additional two years rigorous imprisonment.

Heard Ms. Seema Pandey, learned amicus curiae for the appellant, learned A.G.A. for the State and perused the record.

Facts relevant for adjudication of this appeal appear to be that each of the two accused-appellants has been charged for offence under Sections 21/22 N.D.P.S. Act, 1985 for possessing 15 ceripex tablets and 9 noxious biscuits and were involved in Case Crime Nos.187 and 188 of 1989, Police Station G.R.P. Etawah, District Etawah, in respect of the recovery/incident which took place on 12.11.1989 around 10:45 p.m., on the eastern side of Platform No.2/3 near urinal of Railway Station Etawah where they were arrested by the police party led by Charan Singh, Station House Officer, G.R.P. Etawah.

The allegations against the accused-appellants as contained in the first information report indicate that on 12.11.1989, Charan Singh, Station House Officer, G.R.P. Etawah along with S.I. Surendra Kumar Katheriya, Head Constable Ram Sagar Tiwari, Constable Ram Niwas and Constable Har Dayal Singh accompanied by the informer Shadi Lal, made headway to the spot vide - G.D. entry no.39 at 22:30 hours - where the accused-appellants were allegedly present and arrived in the meanwhile at Railway Station Etawah. The public witnesses were sought to be arranged but no one was willing to become a witness. Therefore, the police party carried out inter-se search of each other and after confirming that they were not possessing any objectionable material/article arrived on the eastern side of Platform No.2/3 near urinal where the informer Shadi Lal beckoned the two persons sitting under Goldmohar tree. The sight of the police got three persons startled and they tried to move away from the place then the informer told that both these persons had administered noxious tea and biscuits to him on 07.11.1989 while he was traveling in train somewhere between Khurja and Aligarh and committed theft of his goods/articles regarding which a report was lodged by him at Police Station G.R.P. Aligarh on 10.11.1989.

The police party apprehended the culprits around 10:45 near terrace. When asked about name, one of them spelt his name as Raju Prasad son of Ram Prasad Kayasth, resident of Sahpur, near Cinema Hall, Police Station Aurangabad, District Gaya (Bihar). When search was made, a suitcase was recovered from his right hand, then apart from other articles, 15 tables of ceripex kept in a polythene bag along with one biscuit packet containing 9 biscuits of make Bakeman's cream were recovered by the police.

The other person spelt his name as Gopal Poddar son of Ram Chandra Poddar, resident of village Mitharapur, Police Station Jitwarpur, District Samastipur (Bihar). His search was also made whereupon suitcase held by him in his right hand was recovered, apart from other articles, 15 tablets of ceripex were recovered, similarly biscuit packet containing 9 biscuits bakeman's cream was recovered by the police.

The accused-appellants told that they usually mix ceripex tablets with the biscuits and administered the same to the passengers who are rendered unconscious then they easily commit theft of passengers' goods. They also confessed to have committed theft after administering noxious biscuits to the informer in A.G.N. passenger train while running between Khurja to Aligarh. They confessed to have committed theft in respect of Rs.285/-, one shirt and paint which have been recovered from suitcase. The shirt, paint and Rs.285 wrapped in handkerchief were also identified by the informer Shadi Lal.

Both the accused-appellants told that the other articles were sold by them to a rickshaw puller in the market. They told that they have learnt this (theft/trickery) from one Kalia who resides in old Delhi and is involved in committing offence in Ajmeri Gate, Delhi. Apart from that, both the accused-appellants also confessed to have committed 100 of such act of theft after administering noxious biscuits to the passengers. The recovered articles from both the accused-appellants were kept under separate seals. Specimen seal was prepared and recovery memo was prepared by S.I. S.K. Katheriya on the dictation of Charan Singh S.H.O., which was readover and explained to all present and after obtaining endorsement of all present on the spot including the accused-appellants, copy whereof was given to the accused-appellants and the case was lodged against the accused-appellants at Case Crime Nos.187 and 188 of 1989, under Sections 21/22 N.D.P.S. Act, Police Station G.R.P. Etawah, on 03.11.1989 at 1:10 a.m.

Consequent thereupon, the investigation ensued and the same was initially entrusted to S.I. Manohar Singh Bhadoriya PW-5 who took over the investigation on 13.11.1989, noted contents of the Check FIR and the relevant entry made in the general diary of date, recorded statement of the accused-appellants and Head Moharrir Ram Sagar Tiwari. Thereafter, the investigation was transferred to Indrapal Singh Solanki PW-6 pursuant to the order passed by the Deputy Superintendent of Police - Railway Agra, dated 18.11.1989. He (PW-6) recorded statement of the prosecution witnesses and prepared site plan of the place of occurrence Ext. Ka-4 and Ext. Ka-5 concerning both the Case Crime Nos.187 and 188 of 1989 and also obtained forensic examination report and filed charge sheets Ext. Ka-8 and Ext. Ka-9 against the accused-appellants Raju Prasad and Gopal Poddar, respectively.

Consequently, the VI-Additional Sessions Judge, Etawah took cognizance of the offence and the accused-appellants were charged under Section 21/22 N.D.P.S. Act. Charges were read over and explained to the accused-appellants who abjured the charge and claimed to be tried.

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

Charan Singh PW-1 is the informant who lodged the first information report concerning both crime numbers against the accused-appellants. After he effectuated arrest of the accused-appellants on oral information of the informer/victim Shadi Lal PW-3. Surendra Kumar Katheriya PW-2 is witness of fact and a member of the police party effectuating arrest of the accused-appellants on 12.11.1989 from Platform No.2/3 of Railway Station Etawah. Shadi Lal PW-3 is victim-informer who orally informed Station House Officer, G.R.P. Etawah about the presence of the accused-appellants on Platform No.2/3 at Railway Station Etawah. Pursuant thereto, the police party led by Charan Singh PW-1 apprehended both the accused-appellants. Head Constable Ram Sagar Tiwari PW-4 has made relevant entry in the concerned Check FIR and general diary whereby the cases were registered against the accused-appellants. He was also one of the members of the police party who effectuated arrest of the accused-appellants on 12.11.1989 from Railway Station Etawah. S.I. Manohar Singh Bhadoriya PW-5 is the first Investigating Officer. S.I. Indrapal Singh PW-6 is the second Investigating Officer of this case. He has proved remaining part of the investigation and filing of charge sheets against both the accused-appellants.

Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, accused Raju Prasad denied the claim regarding his complicity and involvement in the crime and stated that he had come for manual labourer when the police wrongly apprehended him, whereas, accused Gopal Poddar has stated that he is a rickshaw puller and he had come over to the place for earning livelihood where he was wrongly apprehended by the police.

The accused-appellant Raju Prasad has got himself examined as DW-1. He has stressed regarding fact of his presence on the place of his arrest by claiming that he had come over there for earning livelihood.

The learned VI-Additional Sessions Judge/ Special Judge (DAA), Etawah, after appraisal of facts and vetting merit of the case and evaluation of the evidence on record, returned aforesaid finding of conviction under Section 22 N.D.P.S. Act and sentenced the accused-appellants to undergo ten years rigorous imprisonment coupled with fine Rs.1,00,000/- each and in default payment of fine, the concerned convict would have to undergo additional two years rigorous imprisonment.

Feeling aggrieved by the same, both the accused-appellants have come up before this Court.

It has been contended by Ms. Seema Pandey, learned amicus curiae for the accused-appellants that in this case, the story set up by the prosecution is ridiculous from all sides. There is no whisper as to how the informer/victim Shadi Lal came to know about the presence of the accused-appellants at Railway Station Etawah. Similarly, it is beyond comprehension as to how and why the accused-appellants who committed theft of the articles/goods of the informer/victim Shadi Lal in a train somewhere in between Khurja and Aligarh on 07.11.1989 were openly carrying looted suitcase in their hands and were sitting on the railway platform on 12.11.1989. Assuming it to be that some theft was committed after administering noxious biscuits to the informer/victim Shadi Lal even then the accused-appellants must have taken precaution to conceal their crime and must not have appeared in public near a Railway Station between Khurja and Aligarh. The suitcase wherein looted articles namely shirt, paint and currency worth Rs.285/- were kept, were being carried openly by the accused for no worthy reason.

On legal aspects, learned amicus curiae has stressed that there is no whisper about safe conveyance of the sample/recovered substance to the forensic science laboratory for examination. It was incumbent upon the prosecution to have specifically established the safe conveyance of the sample allegedly - recovered ceripex tablets from the possession of the accused-appellants but there is abysmal silence on this point as to by whom and at whose instance, the sample was conveyed for examination to the forensic science laboratory. The entire record is silent and not a single prosecution witnesses numbering six in all has come out and described on that point as to how the sample was taken and how it was taken out of Malkhana concerned and as to who conveyed the same to the forensic science laboratory. In the absence of such specific fact, the entire prosecution case becomes dubious and erroneous one and results in non-compliance of the mandatory provisions of the N.D.P.S. Act.

It has been added that the accused-appellants have no criminal antecedent, they are poor labourers and they have come over to Etawah for earning their livelihood where the police has falsely involved them in this case.

While retorting to aforesaid contention, learned A.G.A. has elaborated that in this case, all the requirements mandated under 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.

Evidence on record abundantly indicates involvement and complicity of the accused-appellants in the occurrence. The trial court has taken correct view of law and facts and has justifiably recorded conviction against the accused-appellants.

Also considered the above submissions and the claim raised by the accused-appellants. 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 the charge under consideration beyond all reasonable doubt against the accused-appellants?

Bare perusal of the first information report which is based on the recovery memo Ext. Ka-1 reflects that it does not give any coherent picture of the recovery allegedly made from the accused-appellants on 12.11.1989. Reasons in this context are specific. As per the allegations contained in the first information report, the informer-victim Shadi Lal - who is employed in the railway department and posted at Railway Station Etawah, has stated in the first information report regarding the incident of theft having taken place on 07.11.1989 with him while he was traveling in some passenger train between Khurja to Aligarh whereby his luggage was stolen after intoxicating him by administering some noxious and poisonous biscuits by the accused-appellants, regarding which as per statement of the informer-victim Shadi Lal PW-3, it has been testified that he went to lodge the first information report at G.R.P. Etawah on 07.11.1989, where the G.R.P. personnel asked him to lodge the first information report after the accused are traced out. If this was the actual position then obviously the accused-appellants were traced out on 12.11.1989. They were arrested from the eastern side of Platform No.2/3 of Railway Station Etawah and a part of the luggage was recovered from the possession of the accused-appellants around 10:45 p.m., then the report at G.R.P. Etawah ought to have been lodged after 10:45 p.m. on 12.11.1989 about the theft but the report is said to had been lodged as per the statement of the victim Shadi Lal at G.R.P. Aligarh on 10.11.1989. This renders version of the informer Shadi Lal, (victim of the theft) in utter contrast to what he claims regarding the lodging of the first information report in respect of the incident of theft. This is apparent absurdity in the case of the prosecution and it is perceptible that both the accused-appellants belongs to the State of Bihar and both claims to have come over to Etawah to earn their livelihood and they are working as such.

Assuming it to be that the accused-appellants had stolen goods/articles in a train running between Khurja and Aligarh on 07.11.1989 then they would not have kept the same articles with them in their possession openly on 12.11.1989 and will not loiter with the same at crowded public place like the present one - the platform - which is frequented, on and off, by large numbers of the passengers. It can be observed that theft was committed on 07.11.1989 and the stolen belongings were being carried in respective suitcases victim on 12.11.1989 then there is no whisper in the entire case as to how the informer-victim Shadi Lal came to know about the presence of two the accused-appellants sitting on the eastern side of Platform No.2/3 of Railway Station Etawah. In the absence of any such connecting link of evidence, theory mooted by the prosecution creates reasonable doubt about the apprehension of the accused-appellants and the consequent recovery and their involvement in the theft case.

Here the dubious circumstance is that after the tip off information was received by the police - particularly by the informant Charan Singh - Station House Officer, around 10:30 p.m. (on 12.11.1989) and reference of the same was noted down in the concerned general diary at Serial No.39 on 12.11.1989, the police party departed in search of the accused but no public witness could be availed though the place of arrest is platform of Railway Station. Natural anxiety crops up that may be that the passengers who frequented the platform at Etawah Railway Station may not be willing to come forward and assist the police and become a witness then the police could have asked at least names of any of such persons but the police failed to ask the names of such persons. This aspect smells of lame excuse by the police party.

This can be an excuse that no one usually agrees to be a witness but was there any scarcity of the railway employees who frequented the railway platforms or who remained present on duty near and on the railway platform, about whose presence and availability, nothing has been stated by the prosecution witnesses, particularly by the informant who happened to be Station House Officer, G.R.P. Etawah, therefore, the very foundation of the prosecution story and the very recovery memo itself do not inspire confidence so as to satisfy query of a reasonable and ordinary prudent man.

The present case relates to recovery of noxious and poisonous ceripex tablets numbering 15 in all possessed by each of the two accused which were mixed with Bakeman's biscuits and administered to the victim which usually rendered the victim unconscious thus facilitating theft of articles of passengers by the accused. It is obligatory on the part of the prosecution to prove its case under the provisions of the N.D.P.S. Act. Upon careful consideration of the the entire testimony of the prosecution witnesses, it can be observed with certainty that it woefully lacks the particular description as to how the sample was taken out of 15 ceripex tablets allegedly recovered from each of the accused.

If whole of the recovered tablets were treated to be sample and the same was sent to the Forensic Science Laboratory, Lucknow for examination then there is no whisper as to on whose instance by whom and as to in what manner and when the same was conveyed from Malkhana to the Forensic Science Laboratory, Lucknow. This apparent omission is fatal and carves out serious ditch and dent in the prosecution case. Not a single witness has been produced to prove this specific aspect as to who took sample (the entire ceripex tablets) in his safe custody and conveyed it in safe possession for examination to the Forensic Science Laboratory, Lucknow.

In absence of cogent and credible testimony on this vital aspect, it would be construed that there is no proof of the sample being sent in safe custody for chemical examination to the Forensic Science Laboratory, Lucknow. Therefore, reports of the Forensic Science Laboratory, in that regard Ext. Ka-6 and Ext. Ka-7 are rendered inadmissible in evidence and would not create impression that the actual substance which was recovered from the possession of the accused-appellants was in fact chemically examined at Forensic Science Laboratory, Lucknow and was found to be ceripex tablets. None but the prosecution is to be blamed for the debacle generated by their own inaction.

If integrity of the very sample and substance recovered and examined is questioned and cannot be answered positively by satisfactory explanation to the understanding of an ordinary prudent man then the reports of the Forensic Science Laboratory, Lucknow become waste piece of papers, as is the case in the present case. Therefore, there is no proof that the recovered substance was in fact ceripex tablets. This lacunae is fatal.

A suggestion has been mooted by the defence that in fact, when the accused-appellants were traveling by train on 07.11.1989, some altercation took place due to which, the persons involved, acted in collusion with the police and falsely implicated the accused-appellants in this case. In the backdrop of aforesaid prevailing facts and circumstances, this suggestion carries force and cannot be ignored. Thus, possibility of false implication of the accused-appellants cannot be ruled out.

The statement of the informer-victim Shadi Lal - as appearing in his cross examination to the ambit that after the incident, he went to the Police Station G.R.P. Aligarh for lodging the report on 07.11.1989 when he was told that after the accused are traced out then he should come to lodge the report. This statement is full of embellishment and improvement in order to fill up the gap created between the incident that took place on 07.11.1989 and the alleged arrest of both the accused on 12.11.1989 by the police from eastern potion of Platform No.2/3 of Etawah Railway Station.

In view of above scrutiny of evidence on record, it is obvious that the trial court was not aware of the aforesaid particular legal as well as factual aspects of the case but recorded finding of conviction against the accused-appellants which finding of conviction for the aforesaid reasons stands vitiated in the eye of law.

Therefore, the judgment and order of conviction dated 04.01.1991 passed by the VI-Additional Sessions Judge /Special Judge, (DAA) Etawah, in Session Trial No.55 of 1990 State Vs. Raju Prasad and another, arising out of Case Crime Nos.187 and 188 of 1989 under Section 22 Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station- G.R.P. Etawah, District- Etawah, is hereby set aside.

Accused-appellants are acquitted of the charge as above.

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

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

Order Date :- 20.11.2018

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