Omvir vs State Of U.P.
2021 Latest Caselaw 4535 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 

 
Case :- CRIMINAL APPEAL No. - 3162 of 2018
 

 
Appellant :- Omvir
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Shilpa Ahuja,A Kumar Srivastava,Chandra Bhan Singh,Naseem Ahmad,Salman Ahmad,Sameer Khan,Sanjeev Kumar Tripathee,Suresh Kumar Srivastava
 
Counsel for Respondent :- G.A.
 

 

 
Hon'ble Arvind Kumar Mishra-I,J.

Heard Sri Sanjeev Kumar Tripathi, learned counsel for the appellant and Sri Bhanu Pratap Singh, learned A.G.A. for the State and perused the records.

The instant criminal appeal challenges the judgment and order dated 29.05.2018 passed by the Additional Sessions Judge, Court No.2, Amroha, in Special Session Trial No.14 of 2015 arising out of Case Crime No.177 of 2015 State Vs. Omvir son of Roomal Singh, under Section 8/18 N.D.P.S. Act, Police Station Adampur, District Amroha whereby the appellant Omvir having been convicted under the aforesaid Sections of N.D.P.S. Act has been sentenced to five years rigorous imprisonment coupled with fine Rs.20,000/- with default stipulation for six months additional imprisonment.

Relevant facts of this appeal as discernible from record suggest that the appellant was caught by the police patrolling party on the tip off information by some informer near Ojpura bridge / culvert on the road within Police Station Adampur, District Amroha, description of the same indicates that S.I. Amrish Tyagi and S.I. Rohit Sharma were patrolling along with their colleagues within Police Station Adampur and were passing from Dhabarsi and reached village Pashupura where they received tip off information from the informer that some person is coming to the village Pashupura from Ojpura side who is possessing illicit contraband. The police party believed this information and tried to arrange public witness but no one was ready to stand public witness, therefore, the police party inter-se made search for each other and assured that there is no adverse material / contraband in their possession. Because of paucity of time, the police party kept themselves hiding on both sides of the road near Ojpura bridge / culvert. After sometime, one person was sighted coming from Ojpura side who was pointed out by the informer. In the meanwhile, the informer went away. When that person came closer to the police party, the police personnel came out of their hiding and after using necessary force at about 4:30 p.m. apprehended that person.

On being asked about his name, he told that he is Omvir son of Roomal Singh, resident of Shibaura, Police Station Didauli. District Amroha. He also informed that he is possessing 300 grams of opium whereupon he was offered choice to be searched before some gazetted officer / Magistrate whereupon he reposed faith in the police party itself for search being made. The search was made out whereupon a green bag was recovered from his right hand wherein some substance was found kept wrapped inside a polythene, it was opium weighing 300 grams. Therefore, Constable Shripal was sent to arrange for scale to the village Dhabarsi from where he obtained scale for weighing the contraband from the shop of some goldsmith. The recovered opium was weighed on the spot whereupon it weighed 300 grams, 10 grams of the recovered opium was taken out for sampling and was kept in separate polythene bag and rest of the recovered opium say 290 grams was also kept in another cloth and both bundles were sealed and specimen seal was prepared, memo of arrest and recovery was prepared under Section 8/18 N.D.P.S. Act.

Once the memo of arrest and recovery and the other documents were prepared on the spot and after reading out contents of the same and after informing the appellant, he was arrested for offence under Section 8/18 N.D.P.S. Act. The contents were also read out to the police personnel who also signed on it. Perusal of memo of arrest and recovery memo Ext. Ka-4 also indicates that after it was so signed, a note was appended at the bottom of the second page of the aforesaid Ext. Ka-4 that copy of memo (of arrest and recovery) is being given to the appellant-accused Omvir Singh. Memo of arrest is Ext. Ka-5. Memo of scale whereby recovered contraband was properly weighed and found 300 grams, out of which 10 grams was taken out for sampling purpose, rest of 290 grams was kept under seal, memo of the same is Ext. Ka-2. Memo of offer to be searched before any gazetted officer or Magistrate is Ext. Ka-3.

After completing the necessary exercise, the appellant was taken to the Police Station Adampur where on the basis of Ext. Ka-4, memo of recovery and arrest, report was lodged against the accused by the informant S.I. Amrish Tyagi, at Police Station Adampur, District Amroha which was taken down at 6:30 p.m. at Case Crime No.177 of 2015 under Section 8/18 N.D.P.S. Act. Check F.I.R. is Ext. Ka-8. Relevant entry was also made in the concerned general diary of the aforesaid date and time at Serial No.34 under the aforesaid Sections of N.D.P.S. Act at the aforesaid Police Station, copy of the general diary entry is Ext. Ka-9.

The investigation of this case was done by S.I. Devendra Kumar PW-3, he took note of the contents of the Check F.I.R. and recorded statement of the constable concerned who noted entry in the Check F.I.R. and concerned general diary of date 25.04.2015. He also prepared site plan of the place of arrest and recovery Ext. Ka-6 and proceeded to record statement of various witnesses and sample collected by the police party earlier was sent to Forensic Science Laboratory for chemical analysis. After recording statement and after receiving analyst report as above, note of the contents of the same was made in the general diary and charge sheet no.160 of 2015 was filed against the appellant in the court below which is Ext. Ka-7 under Section 8/18 of the N.D.P.S. Act.

The trial court heard the appellant on the point of charge and considering the merits of the case and after hearing both the sides, it was of the opinion that prima facie case under Section 8/18 N.D.P.S. Act is made out. Consequently, charge was framed against the appellant under the aforesaid Sections of the N.D.P.S. Act on 27.07.2016 and the same was readover and explained to him who denied the same and claimed to be tried.

To prove its case, the prosecution in all produced five prosecution witnesses, a brief sketch of the same is hereinunder:

S.I. Amrish Tyagi PW-1 is witness of fact, he has prepared prosecution papers. S.I. Rahul Sharma PW-2 is witness of fact of arrest and recovery. S.I. Devendra Kumar PW-3 is the Investigating Officer, he conducted investigation and filed charge sheet. Head Constable Ganga Ram PW-4 entered relevant entry in the Check F.I.R. and also registered case, entered contents in the relevant general diary against the appellant and proved relevant papers as Ext. Ka-8 and Ext. Ka-9, respectively. Constable Amar Pal Singh PW-5 has proved Ext. Ka-10, relevant entry in the register of Malkhana as entered in the handwriting of Constable Ramdin with whose handwriting, this witness is acquainted with.

Thereafter evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 Cr.P.C. wherein he disowned the liability that anything noxious was ever recovered from his possession.

No evidence, whatsoever, was led by the defence.

As a sequel to it, the case was posted for extending arguments pros and cons by the parties and after the arguments were concluded the trial Judge vetted the case on merits, returned finding of conviction against the appellant and passed the aforesaid sentence.

Consequently, this appeal.

Contention, in brief, is that the police party has slapped absolutely false case without any rhyme or reason and fact is that nothing of the sort ever took place on 21.04.2015 on the road near Ojpura bridge / culvert. Nothing was ever recovered from the possession of the appellant and to say that 300 grams of opium was recovered from him is absolutely false and a big lie. No public witness was arranged despite the fact that it was day time and the incident allegedly took place on the road near Ojpura bridge / culvert even then the police party failed to arrange public witness and there is no whisper in the record about any name as to who were the persons who refused to stand as public witness.

The mandatory provisions of N.D.P.S. Act - say Section 42, 50, 55, 57 have not been complied with in letter and spirit due to which adverse presumption cannot be drawn against the appellant that he was possessing opium. The appellant is neither previous convict nor has any criminal history except the present case.

Lastly on the point of quantum of sentence, it has been urged that that appellant is a young man and the fact is that some altercation took place with the police party which led to his false implication in this case. Considering his young age, he should be given one chance to reform himself and leniency must be shown because the appellant has to support his old father and mother, therefore, sentence should be reduced to the minimum imprisonment to secure the ends of justice otherwise his entire future will be jeopardized.

Learned A.G.A. appearing for the State retorted to aforesaid submission and urged that relevant provisions of N.D.P.S. Act have been complied with in letter and spirit in this case. Factum of recovery has been proved, to the hilt, not only by the prosecution witnesses but also by the analyst report that the contraband and the sample sent for chemical examination was on analysis found opium.

The prosecution story on the face inspires confidence. The entire episode is coherently stitched in such manner that any possibility of false implication of the appellant in the case, per se, stands ruled out and no worthy argument has been extended on behalf of the appellant as to how and why the real culprit will be spared and in place of him, the accused-appellant will be falsely implicated in this case. There is no anomaly in the entire prosecution case and the charge under Sections 8/18 of N.D.P.S. Act stands proved beyond all reasonable doubt. The trial court after adverting to the aforesaid aspects of the case and vetting the merits rightly recorded the finding of conviction based on material on record.

Also considered the above submissions.

In the light of rival submissions and the claim of the appellants and the prosecution, the moot point that arises for adjudication of this appeal relates to fact whether the testimony of the prosecution witnesses of fact is innocuous and the charge framed against the appellants has been proved beyond reasonable doubt or it is case of no evidence as claimed by the appellants?

Insofar as the aforesaid contentions are concerned, as per the prosecution story, it is obvious that the prosecution witnesses S.I. Amrish Tyagi PW-1, S.I. Rahul Sharma PW-2, H.C.P. Nasir Ali and Constable Shripal were on patrolling duty on 21.04.2015 around 3:40 p.m., a reference of the same finds mention at Serial No.29 of general diary of the same date 21.04.2015 at 15:40 hours. When the police party reached Pashupura, they received tip off information from informer to the extent that some person possessing opium is coming over to Pashupura from Ojpura side. The police tried to arrange public witness but considering welfare, no one was ready to stand witness for the police party. Thereafter, because of paucity of time, the police party inter-se made out search of each other and assured that no adverse material is possessed by anyone of them.

The police party proceeded towards Ojpura and kept themselves hiding on both sides of the road. After a short while, some person was sighted who was pointed out by the informer to be the person possessing contraband. He went away from the scene as that person came nearer to the police party. The police party came out of their hiding and after using necessary force arrested the appellant. On being asked about his name, he told his name Omvir son of Roomal Singh, resident of Shibaura, Police Station Didauli. He also informed that he is possessing 300 grams of opium. On this disclosure, prior to carrying out search, the appellant was offered a choice to be searched either before the gazetted officer or the Magistrate but he refused the same and reposed faith in the police party itself.

Thereafter, search was made out and a green bag was recovered from his possession wherein some substance / material was found kept in white polythene which was opium weighing approximately 300 grams. Constable Shripal was sent to arrange for scale who obtained it from goldsmith's shop and the recovered contraband was weighed then it aggregated to 300 grams, out of which 10 grams was kept for sampling purpose and sample so colleced and the recovered substance were kept separate in one polythene bag and in white cloth, under seal and relevant papers were prepared on the spot and meme of arrest and recovery was also prepared and copy of memo of arrest and recovery Ext. Ka-4 was given to the appellant, he was taken to the police station where a case was registered at Case Crime No.177 of 2015 under Sections 8/18 N.D.P.S. Act, relevant entry was also made in the concerned general diary and the investigation followed and 10 grams sample earlier collected was sent to the forensic science laboratory for analysis from where report was obtained to the ambit that the recovered material is opium, the analyst's report is available on record.

The aforesaid process has been amply proved by statement of the two prosecution witnesses of fact namely S.I. Amrish Tyagi PW-1 and S.I. Rahul Sharma PW-2. They have narrated the entire incident. They have been cross examined by the defence wherein nothing adverse has come to the fore that may reflect on any violation of Section 50 of the N.D.P.S. Act which is mandatory to be complied with and compliance of two Sections 55 and 57 are merely regulatory and more or less its compliance has also been made, that does not create any dent in the prosecution case, therefore, the trial court was justified in recording conviction against the appellant under Section 8/18 N.D.P.S. Act, for which no infirmity is perceptible in the judgment and order impugned in this appeal. Consequently, the conviction recorded by the trial court is upheld.

Thus insofar as the point of quantum of sentencing part of the judgment is concerned that under prevailing facts and circumstances of this case, appear to be too harsh for which reasons are specific. Considering future family liability of the appellant that the appellant is a young man and he has old parents to look after, and he has promised not to repeat similar offence in future and he is repentful to the situation and undertakes that he will reform himself as a good citizen and he will not repeat similar offence in future and prayed that the sentence should be confined to the minimum possible as that would serve ends of justice.

Therefore, imposition of sentence for 5 years rigorous imprisonment is not justified in the prevailing facts and circumstances of this case and it cannot be approved of at this stage and it should commensurate with the offence in question; moreso in proportionate to the degree the offence has been committed. Here only 300 grams of opium which is much below the commercial quantity i.e. 2.5kg. has been recovered in this case. Hence, the sentence of 5 years rigorous imprisonment with fine Rs.20,000/- imposed by the trial court is palliated to three years rigorous imprisonment coupled with fine Rs.10,000/-, in case of default in payment of fine he would have to suffer additional two months imprisonment.

Accordingly, the sentencing part of the impugned judgment and order dated 29.05.2018 passed by the Additional Sessions Judge, Court No.2, Amroha, in Special Session Trial No.14 of 2015 arising out of Case Crime No.177 of 2015 State Vs. Omvir son of Roomal Singh, under Section 8/18 N.D.P.S. Act, Police Station Adampur, District Amroha, is hereby modified to the aforesaid extent.

In this case, the accused-appellant is in jail since 29.05.2018 and sentence of three years rigorous imprisonment shall come to an end on 28.05.2021, if the amount of fine Rs.10,000/- is also paid on or before 28.05.2021 otherwise the appellant shall have to suffer two months imprisonment. Therefore, the appellant shall serve out the aforesaid remaining part of the sentence as above.

The instant appeal is allowed, partly accordingly.

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

Order Date :- 24.03.2021

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