Gopal Yadav vs State Of U.P.
2018 Latest Caselaw 2376 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 42
 
Case :- CRIMINAL APPEAL No. - 7048 of 2011
 
Appellant :- Gopal Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Khurshed Alam
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

By way of instant criminal appeal, challenge has been made to the validity and authenticity of the judgment and order of conviction dated 1.12.2011 passed by the Additional District and Session Judge, Court No.16, Deoria in Criminal Case No.14 of 2006 (State versus Gopal Yadav), arising out of Case Crime No.26 of 2006, under Section - 8/20 N.D.P.S. Act, Police Station-Laar, District Deoria, whereby the trial court has convicted the appellant under Section 8/20 N.D.P.S. Act and has sentenced him to suffer rigorous imprisonment for three years with fine Rs.5,000/- and in case of default, he would have to suffer additional rigorous imprisonment for three months.

Relevant facts of this case are that the Informant PW-1 Rajendra Pratap Singh Yadav S.O. of Police Station - Laar, District-Deoria was busy in maintaining law and order on 27.1.2006 alongwith other police personnel Constable Arvind Yadav, and Constable Suleman Khan arrived at Mehrauna Barrier. There they parked the official vehicle and started checking vehicles at petrol-pump and taxi stand by Constable Arvind Yadav, Constable Awadhesh Tiwari, Constable Sant Kumar Yadav, Constable Chandra Jeet Yadav and Constable Govind Yadav. When they proceeded towards Mehrauna Ghat Bridge, they sighted a man coming towards them with a gunny bag on his head. On the site of the police, he was frightened, turned back and tried to run away, but the police personnel present over there apprehended him on the pakka road around 4:30 p.m. On being asked, he spelt his name Gopal Yadav son of Jagdeo, resident of Tedhighat, P.S.-Hussainganj, District-Siwan, Bihar. On being asked as to why he was running away, he told that he is having 10.250 kilograms of 'ganja' in the gunny bag. At this, he was suggested that he has every right to be searched before a Magistrate or a Gazetted Officer, whereupon Gopal turned down this offer and reposed faith on the police party itself for his search. Consenting letter was prepared on the spot and after making inter-se search by the police party, search of Gopal was carried out, whereupon three packets of contraband kept inside the gunny bag, which the accused was carrying on his head was recovered. Besides the alleged contraband, Rs.300/- was also recovered from the pocket of his trouser. He was asked to show the authority to keep the contraband 'ganja' but he could not show any authority. Therefore, his act was found to be in violation of Section 8/20 N.D.P.S. Act. He was taken into custody and the recovered contraband 'ganja' was kept inside the gunny bag and sealed. Specimen seal was prepared. Memo of recovery was made and read over to accused and a copy thereof was given to him. A number of persons from the public had gathered on the spot, in the meanwhile but no one was willing to stand witness to the fact of recovery of the contraband. This memo is Exhibit Ka-2. On the basis of the recovery memo, case was registered through Informant-Rajendra Pratap Singh Yadav at Police Station-Laar, District-Deoria on 27.1.2006 at 6:15 p.m. and the accused was detained at the police station and the recovered substance 'ganja' was kept in the 'maalkhana' and case was lodged at Case Crime No.26 of 2006, under Section-8/20 N.D.P.S. Act at Police Station-Laar, District-Deoria against the accused.

Relevant entries were made in the concerned General Diary of the aforesaid date and time at aforesaid police station. Thereafter, the recovered substance was produced before the court where sampling of the recovered contraband was done and the sample was sent for chemical examination to 'Vidhi Vigyan Prayogshala', which on examination was found to be contraband 'ganja'. The investigation ensued after the lodging of the F.I.R. and was conducted by PW-6 Mitthu Ram, who after recording the statement of prosecution witnesses and preparing the site plan Exhibit Ka-5 filed charge-sheet Exhibit Ka-6, under Section-8/20 N.D.P.S. Act against the accused.

Consequently, the accused was charged under Section- 8/20 N.D.P.S. Act. The charge was read over and explained to the accused, who denied the charge and opted to be tried.

The prosecution produced in all six witnesses:-

PW-1 is Rajendra Pratap Singh Yadav, he is the Informant in this case. PW-2 is Awadhesh Tiwari-he is witness of fact of recovery and arrest. PW-3 is Constable Sant Lal-he has made relevant entries in the concerned Check FIR and the G.D. Exhibit Ka-3 and Exhibit Ka-4 respectively. PW-4 Constable Arvind Kumar is also witness of fact, he has also proved fact of recovery and arrest of the accused-Gopal. PW-5 is Constable Sant Kumar Yadav, he is also witness of fact of recovery and arrest of the accused. PW-6 Mitthu Ram is the Investigating Officer of this case. He has proved various papers regarding the investigation and after completing the investigation, he has filed the charge-sheet against the appellant and proved the same as Ext-Ka-6.

Thereafter, the evidence of the prosecution was closed and statement of the accused was recorded under Section-313 Cr.P.C, wherein he has claimed innocence and submitted that all the witnesses are police personnel. Nothing was recovered from his possession and he has been falsely implicated in this case.

No testimony whatsoever was led by the defense.

The trial court after vetting the merit of the case returned aforesaid finding of conviction and sentenced the appellant to three years rigorous imprisonment with fine Rs.5,000/- and in case of default, he was to suffer additional rigorous imprisonment for three months.

Resultantly this appeal.

Learned counsel for the appellant, Sri Khurseed Alam has vehemently contended that in this case, there are certain apparent infirmities in the finding recorded by the trial court. Learned counsel for the appellant further emphasised that the recovered substance was not weighed on the spot and there is no mention in the recovery memo-Exhibit Ka-2 that prior to carrying out the search of the accused, the police personnel present on the spot inter-se searched themselves in order to show that they don't possess any objectionable material. He further submitted that assuming it to be that every process was legally performed and infact the contraband substance was recovered from possession of accused and the same was kept in sealed condition at the police 'maalkhana', even then there is no testimony on record, which may establish fact that the sealed substance was taken out from the 'maalkhana' in intact position and the same remained intact throughout it conveyance from the 'maalkhana' upto the court where sampling was done after the substance was produced before the Court. Merely, because it was unsealed in the court would not itself confer legitimacy on the safe upkeep of the contraband and ensure safe and intact conveyance of the substance to the court, because fresh sealing of the packet can be done even immediately outside the court premises itself and that possibility cannot be ruled out. There is no explanation as to why sampling was not done at the time of recovery and it was kept suspended to be completed before the court (concerned lower court). Next contended that assuming it to be that the accused told the weightage of the substance 'ganja' weighing over 10 kilograms and 250 grams and the police took the weight correct. It means police party based its judgment on guess work. It is admitted position that the substance produced before the lower court was found to be 5.250 kilograms on weighing the same before the court. Guess work of the police party stands exposed when the substance unsealed before the court weighed 5.250 kilograms. This material variation in total weight cannot normally be treated to be 10 kilograms even after making inquiry by physical verification of the weightage of the substance recovered. Not only this, but also there is no proof even before the court as to what was the actual weight of each of the polythene packets numbering three in all, which packets were produced before the court. On that point also things are not clear. If the recovered substance is found not to have been kept in intact condition during its conveyance from 'maalkhana' to the lower court where sampling is claimed to have been done then there cannot be any point in convicting the accused for the alleged recovery of the substance in question notwithstanding fact that it was found to be 'ganja' after examination by the Forensic Science Laboratory. In line of his argument, learned counsel claimed that the appellant-accused is innocent, he has no criminal antecedent. Appellant has been falsely roped in this case by the police.

Per contra, learned A.G.A. claimed that each and every aspect of recovery of 'ganja' was proved by overwhelming testimony of the prosecution witnesses say PW-1 the Informant - Rajendera Pratap Singh Yadav and the prosecution witnesses Awadhesh Tiwari, Arvind Kumar and Sant Kumar Yadav. He further claimed that the very next day of recovery, the recovered substance was produced before the court and 50 grams of sample was taken out of each packet, which sample was duly send for chemical examination, which on examination was found to be contraband 'ganja'. Moreover, the accused did not specifically denied fact that the produced substance was not recovered from his possession. The compliance of provisions of Section 50 of the N.D.P.S. Act has been duly done. The accused was informed of his right to be searched before the Magistrate or a Gazetted Officer. Consenting letter was also prepared on the spot, therefore, all the essential ingredients as required contained under various provisions of the N.D.P.S. Act for proving guilt of the accused were duly proved.

Also considered the rival submissions.

In the light of the submissions so raised, the moot point that arises for consideration relates to fact, whether the prosecution has been able to establish the charge beyond all reasonable doubt? In this way certain things need to be adjudicated upon and after bare perusal of the entire record, it is reflected that on 27.1.2006, a police party led by S.O. Rajendra Pratap Singh Yadav reached at place Mehrauna Ghat Bridge, maintaining law and order in the area. The Government vehicle was parked in the nearby place and vehicles were being checked near petrol-pump and taxi stand. While the checking police party proceeded towards Mehrauna Ghat Bridge, a person was sighted by them, who was carrying load over his head. While, he sighted the police, he tried to fled away from the spot. This created suspicion, therefore, the police personnel apprehended him on the road itself around 4:30 p.m. On inquiry being made, he spelt his name Gopal Yadav s/o Jagdeo, resident of Village-Tedhighat, Police Station-Hussainganj, District-Siwan, Bihar. When asked by the police party as to why he was running away, he told that he is possessing 10.250 kilograms of 'ganja'. Upon said disclosure, he was offered by the Informant-(S.O.) Rajendra Pratap Singh Yadav, whether he would like to be searched in the presence of a Magistrate or a Gazetted Officer, whereupon he reposed faith in the police party itself and was ready for search. The police party inter-se searched each other and became sure that no one was possessing any contraband or objectionable material. Thereafter, search was made of Gopal, whereupon three polythene packets kept inside a gunny bag, kept on the head of the accused were recovered, wherein 'ganja' approximately 10.250 kilograms was recovered. Weight of contraband was an inference and guess work of the police party. On being asked about the authority to keep the same, the accused could not show any authority.

Consequently, he was taken into custody and the recovered substance was kept under seal. The memo of recovery and arrest was prepared on the spot and read over to all the police personnel as well as the accused on the spot and a copy of the recovery memo was also given to the accused. No public witness was ready to stand witness to the fact of recovery and arrest. On the basis of recovery memo - Exhibit Ka-2, a case was registered at the Police Station-Laar, District-Deoria on 27.1.2006 at 6:15 p.m. and a case at Case Crime No.26 of 2006, under Section 8/20 N.D.P.S. Act . The Check FIR is Exhibit Ka-3. Relevant entries were made in the concerned General Diary and the case was registered against the accused at aforesaid case crime number under the aforesaid section of N.D.P.S. Act at aforesaid police station. The case was investigated into by PW-6 Mitthu Ram, who took over the investigation on 28.1.2006, recorded the statement of the accused and other police personnel inspected the spot, prepared the spot map Exhibit Ka-5. In the meanwhile, during investigation the recovered substance was produced before the court, where it was weighed and sampling was done and 50 grams of the contraband was taken out as sample and send for chemical examination and after completing the investigation, the Investigation Officer filed charge-sheet-Exhibit Ka-6. On examination, the sample was found to be contraband 'ganja' and a report of the Joint Director of Vidhi Vigyan Prayogshala has been sent in the case. Fact of recovery of the substance has been proved by the Informant-PW-1 Rajendra Pratap Singh Yadav. He has proved the contents of the memo of recovery-Exhibit Ka-2 prepared on the spot at 4:30 p.m. on 27.1.2006 and he has proved lodging of the FIR on the basis of the aforesaid memo at Police Station-Laar on 27.1.2006 at 6:15 p.m. The lodging of the FIR has been confirmed by another witness PW-3 Sant Lal, who prepared the relevant entries entered in the Check FIR and the concerned G.D. entry at Police Station-Laar and he was also 'maalkhana moharrir' on the date of lodging of the FIR and he has confirmed fact that the recovered substance was kept at the police 'maalkhana', after the case was lodged. However, after scanning and scrutinizing the testimony of all the prosecution witnesses say all the six prosecution witnesses, there is not a single evidence which may unambiguously establish fact that the recovered substance when kept at the 'maalkhana' though was sealed, but the same was conveyed in safe and intact position from the police station 'maalkhana' upto the court. No 'maalkhana register' has been produced before the court during trial and no witness produced to verify the substantial aspect of conveyancing of the contraband in safe position from the 'police maalkhana' upto the court. This way, the possibility of tampering with the contraband substance cannot be ruled out. On this aspect the evidence is altogether missing and no thrust can be given to the vocal testimony of the police constable including the investigating officer. Even the trial court has failed to take proper note of safe conveyancing of the contraband from the police 'maalkhana' to the court.

Legally, it is fair to do sampling of a contraband substance in the court itself after the same has been duly seized and kept under seal at the 'maalkhana'. But the upkeep and safety of the sealed packet must be ensured and proved to have been so till the substance/packet was produced in court where sampling process was done and completed. In this case at hand there is no evidence, worth its name to the ambit that the sealed packet remained in intact position throughout its conveyance from 'maalkhana' upto the court. Evidence is blissfully missing on this particular aspect of this case. If possibility of tampering with the seized substance surfaces then advantage goes to the accused.

Next, the recovered substance though was not weighed physically on the spot was told to be 10.250 kilograms in weight, which was so believed by the police party led by PW-1 Rajendra Pratap Singh Yadav. Under aforesaid specific fact situation, it can be legitimately observed that a normal man would always conform to the weight of 10 kilograms, if it is told to be so and it actually weighed so, but a quantity which is told to be 10 kilograms in weight is found to be approximately around 5 kilograms (5.250 kg) cannot be said to be a guess work of a police team led by none other than the Station House Officer, therefore things are not clear about the actual contraband recovered from the possession of the accused on the spot. On that point, the prosecution has not come out specifically, as to how a substance, which though was told to be 10 kilograms and was so believed without confirmation which infact was found to be 5.250 kilograms while opened and weighed before the court itself. These two shortcomings are substantial and works strongly for non-compliance of the mandatory provisions of the N.D.P.S. Act and for that count it is apparent that the trial court based its finding of conviction on conjecture, not supported by evidence on record and the attendant circumstances of this case. That way the finding of conviction is vitiated as its sans material. On the point of safe conveyance of the recovered substance from 'maalkhana' to the court in intact position of the recovered substance. Possibility of tampering with the sealed packet during conveyance cannot be ruled out. Neither the constable, who carried the substance from the maalkhana upto the court was produced nor the 'maalkhana register' was produced which increases possibility of tampering with the sealed packet to higher degree and renders the judgment of conviction recorded by the trial court erroneous and perverse and on that count the entire conviction recorded by the trial court vide its judgment and order dated 1.12.2011 is also vitiated and the accused involved in aforesaid case is liable to be acquitted.

Resultantly this appeal is allowed and the conviction and sentence passed by the trial court in this case is hereby set aside.

The appellant is already on bail. His personal bonds and bail bonds are cancelled and sureties are discharged.

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

Order Date :- 7.9.2018

S Rawat