Smt. Tarjom Tamag vs State Of U.P.
2022 Latest Caselaw 6544 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No.-15
 

 
Case :- JAIL APPEAL No. - 1574 of 2011
 
Appellant :- Smt. Tarjom Tamag
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Govt. Advocate,Anil Kumar Rai(Amicus Cur
 
with
 
Case :- CRIMINAL APPEAL No. - 1918 of 2011
 
Appellant :- Smt. Sangeeta
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Maya Ram Yadav
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ajai Kumar Srivastava-I, J.

1. Challenge in both the appeals is the judgment and order dated 01.11.2007 passed by the learned Additional Sessions Judge, Fast Track Court, Balrampur in Special Criminal Case No.14 of 2007 (State vs. Smt. Sangeeta) arising out of Crime No.165 of 2007, under Section 8/20 N.D.P.S. Act, Police Station Pachperwa, District Balrampur and in Special Criminal Case No.13 of 2007 (State vs. Smt. Tarjom Tamag) arising out of Crime No.166 of 2007, under Section 8/20 N.D.P.S. Act, Police Station Pachperwa, District Balrampur whereby the appellants, namely, Smt. Tarjom Tamag (in Jail Appeal No.1574 of 2011) and Smt. Sangeeta (in Criminal Appeal No.1918 of 2011) have been convicted and sentenced to undergo ten years' rigorous imprisonment with a fine of Rs.1,00,000/- (rupees one lac) each for the offence under Section 8/20 N.D.P.S. Act and in default of payment of fine, they have further been directed to undergo one year's additional imprisonment.

2. Neither the appellants nor their counsel is present to press these appeals.

3. It is pertinent to mention here that a report of Senior Superintendent of Jail, Balrampur dated 09.05.2019 annexed as Flag-JR to Criminal Appeal No.1918 of 2011, reveals that the appellants were sentenced to undergo for a period of ten years' rigorous imprisonment with a fine of rupees one lac. Since, they were unable to pay the fine imposed against them, they were directed to undergo for a period of one year's additional imprisonment. Resultanly, they have served out entire sentence and were released from jail on 22.04.2018.

4. Keeping in view the overall facts and circumstances of these appeals, which pertain to year 2011 and are old, the same are proposed to be disposed of on the basis of material available on record with the assistance of Sri Rajesh Kumar Singh, learned A.G.A. for the State who is present in the Court.

5. Since both the aforesaid appeals have been preferred against the judgment and order dated 01.11.2007, therefore, they are proposed to be decided together and are being decided by a common judgment.

6. The prosecution story, in brief, is that on 22.04.2007, the first informant, S.I./G.D. Shabhudutt while he was busy in maintenance of law and order, before four kilometers of border, Pillar No.11, two women were seen coming on foot and out of them, one woman was carrying a bag in her hand. They were intercepted and were inquired as to what were they carrying. They told their names as Smt. Sangeeta and Smt. Tarjom Tamag and they told that they belong to Nepal. They were informed that it is their legal right to get themselves searched by a Magistrate or a Gazetted Officer. However, they submitted and agreed to be searched by the police personnels only. Thereafter, the police personnels conducted their personal search. About four kilograms charas was recovered from the possession of Smt. Tajrom Tamag from the bag which she was carrying and four packets of charas, about four kilograms were also recovered which were tied with the waist of Smt. Sangeeta. The appellants were arrested, some quantity was taken out as samples from the recovered charas from their possession and were sealed separately to be sent for F.S.L. examination.

7. On the basis of aforesaid recovery memo, Ex. Ka-1, Crime Nos.165 of 2007, under Section 8/20 N.D.P.S. Act, Police Station Pachperwa, District Balrampur and 166 of 2007, under Section 8/20 N.D.P.S. Act, Police Station Pachperwa, District Balrampur against the appellants, namely, Smt. Tajrom Tamag and Smt. Sangeeta respectively came to be registered. The investigation was handed over to S.I. S.K. Pandey who recorded the statements of the appellants, namely, Smt. Tarjom Tamag and Smt. Sangeeta, under Section 161 Cr.P.C., visited the place of recovery and prepared a site map as Ex. Ka-5. The recovered sample was sent for F.S.L. examination.

8. Upon conclusion of investigation, charge sheet, Ex. Ka-7 against the appellant, Smt. Sangeeta and charge sheet, Ex. Ka-8 against the appellant, Smt. Tarjom Tamag were submitted.

9. Charge under Section 8/20 N.D.P.S. Act. was framed against the appellants. They denied the charge and claimed to be tried.

10. In order to prove its case, the prosecution has produced Head Constable/G.D., Kulveer Soor as PW-1, Constable Sateesh Bahuguda as PW-2, Santosh Prasad as PW-3, S.I./G.D., Shambhudutt as PW-4, Jagveer Singh, Circle Organizer as PW-5, S.I. Kamlesh Singh as PW-6, Constable Kailashnath, chik writer as PW-7, S.I. Satyendra Kumar Pandey as PW-8 and Constable/G.D. Ravindra Kumar as PW-9. It also transpires from the perusal of record that the statements of aforesaid witnesses in original were recorded in Criminal Case No.14 of 2007 whereas its copies were kept on the record of Criminal Case No.13 of 2007.

11. The appellants in their statements recorded under Section 313 Cr.P.C. have stated to be innocent who were falsely implicated because they were foreign nationals, belonging to Nepal. They have also stated that no incriminating psychotropic substance was recovered from their possession.

12. Upon conclusion of trial, the appellants came to be convicted for the offence under Section 8/20 N.D.P.S. Act and were sentenced as aforesaid.

13. Aggrieved by the impugned judgment and order dated 01.11.2007, the aforesaid appeals have been preferred.

14. From a perusal of memo of appeals, it transpires that it is mainly filed on the ground that the finding of guilt of the appellant is against the weight of evidence. No recovery, whatsoever, was made from their possession. There is no independent witness of alleged arrest/recovery, therefore, the same cannot be relied upon. It is also stated that the appellants being ladies ought to have been sentenced liberally.

15. Per contra, learned A.G.A. has vehemently opposed the aforesaid submissions and has submitted that keeping in view the fact that recovery was made from the possession of the appellants near international border which is a sensitive place and is not a place of public congregation. Therefore, unavailability of any independent witness of recovery cannot be termed to be unnatural and no undue emphasis on such unavailability may be laid.

16. His further submission is that all mandatory compliance as envisaged in N.D.P.S. Act including compliance of Section 50 N.D.P.S. Act has been duly made which is apparent from the statement of PW-5, Jagveer Singh, Circle Organizer.

17. This Court has undertaken the close scrutiny of prosecution evidence and impugned judgment and order of learned trial court on the basis of material available before it and after giving its anxious consideration to the facts of the case, it is found that the appellants were arrested on 22.04.2007 when the police party led by PW-4, S.I./G.D., Shabhudutt was busy in maintenance of law & order of border area. This Court does not find any reason to believe that the appellants who are foreign nationals would be implicated for no reason. There is nothing on record to indicate, in any manner, that they have been falsely implicated.

18. Thus, upon a close survey of testimonies of PW-1, Head Constable/G.D., Kulveer Soor, PW-2, Constable Sateesh Bahuguda, PW-3, Santosh Prasad, PW-4, S.I./G.D., Shambhudutt, PW-5, Jagveer Singh, Circle Organizer, PW-6, S.I. Kamlesh Singh, PW-7, Constable Kailashnath, chik writer, PW-8, S.I. Satyendra Kumar Pandey and PW-9, Constable/G.D. Ravindra Kumar, and upon its close scrutiny, this Court finds that the prosecution case stands proved in the light of consistent testimony of witnesses of arrest and recovery and other prosecution witnesses. From their testimony, it can be safely inferred that there was no contravention of provision of Section 50 N.D.P.S. Act. The prosecution has, thus, been successful in proving its case against the appellants in respect of their arrest and recovery of psychotropic substances from their possession on 22.04.2007.

19. On the basis of aforesaid discussion, it is held that the learned trial court vide impugned judgment and order dated 01.11.2007 has rightly convicted the appellants and they have been rightly awarded sentences therefor.

20. Let a copy of this judgment be placed on the record of connected Criminal Appeal No.1918 of 2011 (Smt. Sangeeta vs. State of U.P.).

21. For the foregoing discussion, the appeals lack merits which deserve to be dismissed and the same are hereby dismissed.

22. Let a copy of this judgment along with lower court record, if any, be sent to the concerned court below for information and necessary compliance.

(Ajai Kumar Srivastava-I, J.)

Order Date :- 12.07.2022

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