Mehboob vs State Of U.P.
2021 Latest Caselaw 3088 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Reserved on 3.2.2021
 
Delivered on 2.3.2021
 
In Chamber 
 

 
Case :- CRIMINAL APPEAL No. - 6794 of 2019
 

 
Appellant :- Mehboob
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Ajai Kumar,Mukesh Joshi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Subhash Chand,J.

1. The instant Criminal Appeal is preferred on behalf of the appellant Mehbood against the state of U.P., against the judgment and order dated 13.9.2019 passed by the Additional Sessions Judge, Court No. 11, Moradabad in Special Sessions Trial No. 806 of 2018 (State of U.P. Vs. Mehbood) whereby the appellant was convicted and sentenced with rigorous imprisonment for 5 years and fine of Rs. 5,000/- for the charge under section 8/15 of The Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and in default of payment of fine the appellant was directed to undergo for additional imprisonment for one year.

2. The brief of facts giving rise to this criminal appeal are that on 3.4.2018 Sub-Inspector Sanjeev Kumar along with police party while on patrolling received information from the informant (Mukhbir Khas) that one person along with 10-12 Kgs. poppy straw in a plastic gunny bag would come from the side of Umari by e-Rikshaw and would pass by the Newada Railway crossing. On this information Sub-Inspector Sanjeev Kumar along with police party reached to the Newada Railway crossing and after waiting for some time one person came by e-Rikshaw and alighted from e-Rikshaw and proceeded along with white colour plastic gunny bag in his hand towards Newada Railway crossing. The informant indicated to the police party that he was the very person who had poppy straw in the plastic gunny bag. That person was apprehended at 21:30 hours and he told his name Mehbood, son of Sattar, resident of tenanted house of Afzal Jabruddin Mohalla Daulatbagh, P.S. Nagfani, District Moradabad. This person told that he had poppy straw in the plastic gunny bags. The police party asked him for his personal search before the Magistrate or a gazetted officer. This person refused for the same and reposed his trust in the police party in taking search of him and a consent memo was prepared under section 50 of the Act. The thumb impression of this accused was taken on this consent memo. In the plastic gunny bag 12 polythene packets of one kg., each were kept. On being opened one packet it was found to be narcotic drugs I.e. poppy straw. The weighing machine brought by constable Basant Kumar and on being weighed it was found 11.800 Kg. poppy straw. Out of 12 packets 11 packets were sealed in the same plastic gunny bag and same was also made specimen and one packet of 970 gms., poppy straw was kept in one white colour cloth for forensic examination and same was sealed in cloth and made specimen. The accused Mehboob was made aware in regard to commission of offence by him under section 8/15 of the Act and his arrest memo was prepared keeping in view the safeguards. The recovery memo was prepared on the spot which was signed by the accused and all the police personnel present at that time and on the basis of this recovery memo case crime no. 0089 of 2018 was registered under section 8/15 of the NDPS Act against the accused Mehboob with the police station Kanth, District Moradabad. The Investigating Officer after having concluded the investigation filed charge sheet against the accused Mehboob before the court of Sessions Judge, Moradabad which was registered as SST No. 806 of 2018 and cognizance was taken thereon.

3. The trial court framed the charge against the accused Mehboob under section 8/15 of the Act and charge was read over and explained to the accused who denied the charge and claimed to be tried.

4. On behalf of prosecution to prove the charge against the accused in documentary evidence filed recovery memo, Exb. Ka-1, consent memo for personal search of police personnel Exb.Ka-2, consent memo of accused Mehboob under section 50 of the Act, Exb-Ka-3, arrest memo, Exb-Ka-4, site plan of place of occurrence Exb. Ka-5, FSL report, Exb. Ka-6, charge sheet, Exb. Ka-7, check FIR, Exb. Ka-8, GD entry in regard to registering the case crime, Exb. Ka-9.

In oral evidence examined PW-1 Sub-Inspector Sanjeev Kumar, PW-2, Sub-Inspector, Lokesh Kumar Tomar, PW-3, Sub-Inspector Mukesh Singh.

5. The statement of the accused Mehboob was recorded under section 313 of Cr.P.C., who denied incriminating circumstances in evidence against him and stated that he is innocent and has been falsely implicated in this case.

6. The trial court after hearing learned counsel for the parties convicted the accused Mehboob vide judgment and order dated 13.9.2019 for the offence under section 8/15 of the Act and punished him with rigorous imprisonment for 5 years and fine of Rs. 5,000/-. In default of payment of fine additional imprisonment of one year was directed to be undergone by the convict.

7. Aggrieved from the impugned judgment of conviction and sentence dated 13.9.2019 this criminal appeal is preferred on behalf of the appellant/convict Mehboob on the ground that the impugned judgment and order dated 13.9.2019 is against the fact and law and the same is against the weight of evidence on record. The impugned judgment and order is based on conjectures and surmises. The trial court has not appreciated the evidence on record in proper perspective. There is no independent witness of the alleged recovery. No compliance of the provisions of sections 41,42,50 and 57 of the Act was made during search and seizure. Accordingly, prayed to allow this criminal appeal and to set aside the impugned judgment of conviction and sentence and to acquit the appellant from the charge levelled against him.

8. I have heard Sri Mukesh Joshi learned counsel for the appellant, learned AGA for the State and perused the materials brought on record.

9. Learned counsel for the appellant has submitted that as per prosecution version the police party had received the information from the informant (Mukhbir Khas) that one person along with 10-12 Kg., poppy straw in a plastic gunny bag was to come from the side of village Umari and would pass by the Newada Railway crossing. Accordingly, police party relying upon the information of Mukhbir Khas reached at the Railway crossing Newada. The police party also waited there for some time and as such that person alighted from e-Rikshaw and proceeded towards the Newada Railway crossing having a plastic gunny bag in his hand and on the indication of Mukhbir Khas that person was apprehended by the police party and from his possession 12 Kg., poppy straw was recovered in 12 polythene packets of one kg., each which was kept in a white colour plastic gunny bag. It is also further submitted that as per provisions of section 42 of the Act the head of the police party had to reduce the information received from the Mukhbir Khas in writing and did not inform to his superior officers in this regard before apprehending the accused. Therefore, the violation of mandatory provisions of NDPS Act is the ground of acquitting the accused.

10. In this regard, on behalf of prosecution PW-2 Sub-Inspector Sanjeev Kumar who is complainant in his statement says that on 3.4.2018 he was deployed as Sub-Inspector with the Police Station Kanth and on that day he along with Sub-Inspector Lokesh Kumar Tomar, Constable 706 Rahul Kumar Yadav and Constable 966 Basant Kumar reached the police station making entry in Rapat No. 64 at 18:38 hours and were on patrolling and checking of the vehicles to maintain law and order within the limit of police station concerned. The informant (Mukhbir Khas) had informed him that one person was to come from the side of village Umari by e-Rikshaw and would pass through Newada Railway crossing and that person was carrying 10-12 Kg., poppy straw in a plastic gunny bag and relying on this information of Mukhbir Khas he along with police party reached to Newada Railway crossing and on the indication of the informant (Mukhbir Khas) that person was apprehended after a wait of 10-20 minutes at the Railway crossing.

This witness in his cross-examination says that he did not give any information to his superior officers which he has received from the Mukhbir Khas. Again this witness says; he informed the higher authorities in regard to the information received from Mukhbir Khas but no entries were made in this regard in the recovery memo.

PW-2 Sub-Inspector Lokesh Kumar Tomar in his examination-in-chief also supports the FIR case and says that the information was received from the Mukhbir Khas that one person was to come carrying poppy straw with him.

PW-3 Sub-Inspector Mukesh Singh also corroborated the statement of the complainant.

11. From the statement of three witness it is found that the police party had received the information from the Mukhbir Khas that one person was to come from the side of village Umari carrying 10-12 kg., poppy straw in a plastic gunny bag and he would pass by the Newada Railway crossing.

Admittedly, this information received from the informant (Mukhbir Khas) was not taken down in writing in view of section 42 (1) of the Act and a copy of the information was not given to the immediate superior officer within 72 hours in view of section 42 (2) of the Act. Therefore, the mandatory provision of Section 42 of the Act was violated.

The Hon'ble Apex Court held in Sukhdev Vs. State of Haryana 2013 Criminal Law Journal 841 that the compliance of section 42 of the NDPS Act is mandatory. The contravention of it vitiates the trial.

The Hon'ble Apex Court in Kishan Chand Vs. State of Haryana reported LAWS (SC) 2012-12-55 held in para 12 as under:-

"12. In our considered view, this controversy is no more res integra and stands answered by a Constitution Bench judgment of this Court in the case of Karnali Singh(supra). In that judgment, the court the very opening paragraph noticed that in the case of Abdul Rasid Ibrahim Mansuri Vs. State of Gujrat (2000) 2 SCC 513, a three Judge Bench of the Court had held that compliance of Section 42 of the Act is mandatory and failure to take down the information in writing and sending the report forthwith to the immediate officer superior may cause prejudice to the accused. However, in the case of Sajan Abraham (supra), again a bench of three Judges, held that this provision is not mandatory and substantial compliance was sufficient. The Court noticed, if there is total non-compliance of the provisions of Section 42 of the Act, it would adversely affect the prosecution case and to that extent, it is mandatory. But, if there is delay, whether it was undue or whether the same was explained or not, will be a question of fact in each case."

12. Learned counsel for the appellant has submitted that the place of occurrence is public place and no independent witness of public was made party to the recovery memo which casts doubt on the recovery memo itself because all the witnesses of the recovery memo are police personnel.

From the perusal of the recovery memo Exb. Ka-1 it is found that the place of occurrence is Newada Railway crossing and time of occurrence is 21:30 hours on 3.4.2018. This recovery memo is Exb.Ka-1. PW-1 S.I. Sanjeev Kumar and PW-2 Lokesh Kumar Tomar both have stated that they asked the persons of public to be witness but none was ready for the same. Therefore, independent witness of the recovery memo was not made.

On the ground that no witness of public was made party to the recovery memo, the whole of the prosecution case can not be discarded but it may be one of the grounds to cast doubt on the prosecution story.

13. Learned counsel for the appellant has further submitted that before apprehending the appellant/convict Mehboob no compliance of section 50 of the Act was made. Non compliance of the mandatory provision of section 50 of the Act vitiates the whole of the trial.

On behalf of the prosecution witness PW-1 S.I. Sanjeev Kumar says that all the police personnel of the police party had taken search inter se and no narcotics drugs and psychotropic substance was recovered from any one of the police personnel. Accordingly, recovery memo of the same was prepared which was signed by S.I. Sanjeev Kumar, and Lokesh Kumar Tomar, Constable Rahul Yadav and Constable Basant Kumar. This memo in regard to search of police personnel has been proved by the prosecution witness PW-1 S.I. Sanjeev Kumar as Exb. Ka-2.

PW-1, S.I. Sanjeev Kumar and PW-2 Lokesh Kumar Tomar also in their statement say that before making search of the accused Mehboob they made the accused Mehboob aware in regard to his right to get search before the Magistrate or gazetted officer but this accused stated that he reposed his trust in the police party and he was not needed to be searched in presence of the Magistrate or gazetted officer. In regard to the same a consent memo was prepared which was signed by S.I. Sanjeev Kumar, S.I. Lokesh Kumar Tomar, Constable Basant Kumar and Constable Rahul Yadav and this consent memo was also read over to the accused Mehboob, who after having understood the contents of this consent memo affixed his thumb impression on this consent memo. This consent memo has been proved by PW-1 S.I. Sanjeev Kumar as Exb. Ka-3.

As per prosecution case the recovery of the alleged 12 Kg., poppy straw from the possession of the accused Mehboob was not a chance recovery rather police party apprehended him after having received information from the Mukhbir Khas.

As per prosecution case 12 Kg., poppy straw was recovered out of plastic gunny bag in 12 polythene packets of one kg., each and this gunny bag was in the hand of appellant/convict Mehboob.

It is settled law that the compliance of section 50 of the Act is mandatory. The mere information to the accused that he had option to be searched either in presence of gazetted officer or Magistrate is not enough. It is required that the accused is actually brought before the gazetted officer or the Magistrate and give option in order to impart authenticity.

In the present case as the poppy straw was in a plastic gunny bag which was being carried by the appellant, the provision of section 50 of the Act would not attract.

The Hon'ble Apex Court held in Rajendra Vs. State of U.P. 2004 (48) SCC 304 Section 50 of the Act applies only in case of personal search and does not extend to the search of vehicle container of bag or premises.

14. Learned counsel for the appellant has also submitted that the sampling of the recovered poppy straw was not made as per provisions of the Standing Order No. 1/89 dated 13.6.1989, Section II (General Procedure For Sampling Storage, etc.), which is quoted as below:-

"2.1. All the drugs shall be properly classified carefully weighed and sampled on the spot of seizure.

2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotics drugs and psychotropic substance seized shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the punchanama drawn on the spot.

2.3. The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantity shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make ti homogeneous and representative before the sample (in duplicate) is drawn.

2.4. In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container.

2.5. However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may carefully bunched in lots of 10 packages/containers except in the case of ganja and hashish(charas), when it may be bunched in lots of 40 such packages/containers.For each such lot of packages/containers, one sample(in duplicate) may be drawn.

2.6. Where after making such lot, in the case of hashish and ganja, less than 20 packages/containers remain and, in the case of other drugs, less than five packages/containers remain, no bunching would be necessary and no samples need be drawn.

2.7. If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such reminder package/container.

2.8. While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative samples in equal quantity are taken from each package/container of that lot and mix together to make composite whole from which the samples are drawn for that lot.

2.9. The sample in duplicate should be kept in heat-sealed plastic bag as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the No. of the package(s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "Secret- Drug sample/test memo", to be sent to the chemical laboratory concerned."

As per evidence available on record it is found that the sampling of the poppy straw was not taken as representative sampling. There were 12 packets of one kg., each bearing poppy straw in plastic gunny bag. Out of the 12 packets, 11 packets were sealed in a plastic gunny bag on the spot; while one packet of poppy straw which was 12th one was sent for examination to Forensic Science Laboratory (in short FSL) as such, out of 12 packets only one packet was sent for examination and no sampling was taken in any quantity from the remaining 11 packets of poppy straw.

The FSL report Exb. Ka-6 is on record. As per FSL report the result of poppy straw which was sent in a polythene bag having 950 gms was found to be poppy straw.

The Hon'ble Apex Court held in Criminal Appeal No. 1397 of 2007 Union of India Vs. Bal Mukund and others vide judgment dated 31st March 2009 held in paragraph 39 as under:-

" There is another aspect of the matter which can not also be lost sight of Standing Instruction No. 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW-7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law."

Therefore, in the case at hand the violation of the Standing Order dated 1/89 dated 16.9.1989 Section II General Procedure for Sampling etc., has been made, because out of 12 packets of poppy straw which was found in as plastic gunny bag from the possession of the appellant only one packet was sent to the testing to the FSL and no representative sampling was taken from the remaining 11 packets. As such, there is nothing on record to support the prosecution case that in the 11 remaining packets the narcotics drugs was also poppy straw.

15. Learned counsel for the appellant has also submitted that there is no evidence adduced on behalf of the prosecution that the recovered poppy straw was kept in a sealed cover and specimen was made in a proper way in safe custody from the date of recovery upto the date of sending one packet for testing to the FSL. No malkhana register was produced and nor the same was proved on behalf of the prosecution. Therefore, there is violation of section 55 of the Act.

From the perusal of the record it is found that the police party apprehended the appellant Mehboob on 3.4.2018 and 12 Kg., poppy straw in 12 packets in polythene, one kg., each which was kept in a plastic gunny bag were recovered from his possession. Out of these 12 packets, 11 were sealed in a plastic gunny bag and one packet was sealed in a cloth for sampling and same was sent to the FSL on 16.4.2018.

PW-3 S.I. Mukesh Singh is the investigating officer of case crime no. 89 of 2018. This witness in his statement says that he sent a packet of sampling for examination to the FSL, Moradabad and receiving of the same was entered in the case diary. The FSL report Exb. Ka-6 was received and after conclusion of the investigation in view of the statement of the witnesses, documents on record, FSL report and charge sheet was filed against the accused Mehboob.

The recovered contraband was sealed by S.I. Sanjeev Kumar. During investigation same was taken by him in his possession and the memo of the same was not prepared by him. Today, he has not brought the case property before the Court. The malkhana register is not brought by him. The receiving of the sampling of FSL report was got on the malkhana register.

From the FSL report itself Exb. Ka-6 it is found that the sampling of this case crime was sent on 16.4.2019 to FSL Moradabad; while in view of recovery memo Exb. Ka-1 the alleged 12 kg., poppy straw was recovered on 3.4.2018. From the date 3.4.2018 whether the seized poppy straw was kept in safe custody, is nothing on record to prove the same. No malkhana register was produced on behalf of the prosecution in regard to compliance of section 55 of the Act. Certainly, provisions of section 55 of the Act are directory in nature; but the violation of the same also casts doubt on the prosecution story.

Hon'ble Apex Court in State of Rajasthan Vs. Gurmail Singh 2005 Criminal Law Journal 1749 held that malkhana register was not produced in evidence to prove the seized article, but kept in malkhana. No sampling of the same was sent along with sample of laboratory for the purpose of comparing sealing in the sample bottle. No evidence that the seal was intact. Acquittal proper.

16. Therefore, in view of re-appreciation of the evidence on record it is found that the prosecution has failed miserably to prove its case beyond doubt. The conviction of the appellant bears infirmity and same deserves to be set-aside and the appeal is allowed. The appellant is in jail. He be released forthwith, if he is not wanted in some other case provided the bail bonds are furnished on his behalf before the trial court in compliance of section 437-A of Cr.P.C., to the satisfaction of the court concerned.

17. Let the copy of the judgment/order be certified to the court concerned for necessary information and follow up action.

Dated:2.3.2021

SKS