Ajay Misra vs State Of U.P.
2022 Latest Caselaw 6546 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- JAIL APPEAL No. - 67 of 2014
 

 
Appellant :- Ajay Misra
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Jail Appeal,Ashish Raman Misra A.C
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

The instant jail appeal has been filed by the appellant, Ajay Mishra to assail the judgment and order dated 20.09.2013 passed by Additional District & Sessions Judge, Court No.8, Lucknow whereby he has been convicted and sentenced for a period of ten years' rigorous imprisonment with a fine of Rs.1,00,000/- for the offence under Section 8/21 Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) and in default of payment of fine, he has further been directed to undergo one year's additional simple imprisonment.

Heard Sri Ashish Raman Mishra, Advocate, who was appointed as Amicus Curiae, vide order dated 20.04.2016 passed by this Court, Sri Ashok Kumar Singh, learned A.G.A. for the State and perused the record.

Brief facts giving rise to the instant jail appeal is that the appellant was arrested on 09.11.2011 at about 21:15 Hrs. near auto stand, circulating area, Charbagh Railway Station under the jurisdiction of G.R.P., Lucknow. From the personal search of appellant, a polythene pouch was recovered from the right pocket of his trouser containing white substance weighing 215 gms which were Diazepam Powder. Out of recovered quantity of 215 gms, 20 gms were taken out and were sealed in a separate pouch. The same was also sent to Forensic Science Laboratory for its chemical examination.

On the basis of aforesaid recovery/arrest memo, Ex. Ka-2, Case Crime No.834 of 2011, under Sections 8/21/22 NDPS Act came to be registered against the appellant.

Investigating Officer under took the investigation. He recorded the statements of witnesses under Section 161 Cr.P.C. He also visited the place of recovery/arrest and prepared site plan thereof as Ex. Ka-3 and upon conclusion of investigation, he submitted the charge sheet as Ex. Ka-5 against the appellant.

In order to bring home guilt of the appellant, the prosecution has examined P.W.-1, S. I., Sri Narendra Kumar Mishra, P.W.-2, S. I., Sri Brajesh Kumar Yadav and P.W.-3, S.I., Sri Satya Prakash Yadav.

The appellant, in his statement recorded under Section 313 Cr.P.C., has stated himself to be innocent and has also stated to have been falsely implicated in this case. The appellant was charged under Section 8/21 NDPS Act to which he denied and claimed to be tried.

No evidence in defence was adduced by the appellant before the trial Court.

The appellant, vide impugned judgment and order dated 20.09.2013, came to be convicted as aforesaid. Hence, this appeal.

It is submitted by learned counsel for the appellant that the appellant is innocent and has been falsely implicated in this case as no recovery whatsoever was effected from his personal search. The allegedly recovered Diazepam powder has been falsely planted. His further submission is that the compliance as stipulated in Section 50 of NDPS Act has not been made by the police personnels at the time of alleged arrest and recovery. Therefore, the entire proceedings are vitiated and no conviction on the basis of such alleged recovery can be recorded.

Learned counsel for the appellant has also submitted that the finding of guilt of the appellant is against the weight of evidence available on record, therefore, the impugned judgment and order being illegal deserves to be quashed.

Per contra, learned A.G.A. has opposed the prayer and has submitted that 215 gms. Diazepam powder were recovered from the possession of appellant on 09.11.2011 at the time of his arrest. The personal search of appellant was conducted in accordance with law and after complying with the provisions of Section 50 of NDPS Act. There is nothing on record to show that the appellant has been falsely implicated in this case.

Learned A.G.A. has further submitted that the prosecution has proved its case against the appellant on the basis of cogent evidence. The appellant has been convicted by the impugned judgment and order which is well discussed and reasoned wherein no interference by this Court is warranted.

Having heard learned Amicus Curiae appearing for the appellant and learned A.G.A. for the State and upon close scrutiny of record including impugned judgment and order and testimonies of prosecution witnesses, it transpires that P.W.-1, S. I., Sri Narendra Kumar Mishra and P.W.-2, S. I., Sri Brajesh Kumar Yadav, in their testimonies, have supported the prosecution story. They have stated on oath that the appellant was arrested on 09.11.2011 near auto stand at Charbagh Railway Station. They have also stated that the appellant was informed that it is his right to get his personal search done from a Gazetted Officer or Magistrate. However, the appellant agreed to get his personal search conducted by the police personnels present on the spot. They have also stated that 215 gms Diazepam powder were recovered from the possession of the appellant and out of which, 20 gms were taken out and sent to Forensic Science Laboratory for its chemical examination, which was found to be Alprazolum, according to report i.e. Paper No.A-9/1 of FSL.

Thus, upon a close scrutiny of prosecution witnesses, this Court is of the considered view that the prosecution has been successful in proving its case against the appellant under Section 8/21 NDPS Act. There is nothing on record to show that the appellant has been falsely implicated for any ulterior motive or reason.

Thus, the finding of guilt of appellant returned by the learned trial Court by means of the impugned judgment and order is based on proper appreciation and analysis of prosecution evidence wherein no interference by this Court is warranted.

However, keeping in view the fact that the appellant is in jail since post conviction in the aforesaid trial, the sentence awarded to the appellant,in default of payment of fine of Rs.1,00,000/-, is liable to be modified to six months' additional simple imprisonment only.

Accordingly, the conviction of the appellant under Section 8/21 NDPS Act and awarding of sentence for ten years' rigorous imprisonment with a fine of Rs.1,00,000/- are affirmed. However, the sentence awarded to the appellant for one year's additional simple imprisonment in default of payment of fine of Rs.1,00,000/- is modified to six months' additional simple imprisonment.

With the aforesaid modification, the instant jail appeal deserves to be partly allowed.

The instant jail appeal is, thus, partly allowed as indicated above.

Before parting with the case, this Court expresses its appreciation for the distinguished assistance rendered by Shri Ashish Raman Mishra, the learned Amicus Curiae in the instant appeal. The learned Amicus Curiae shall be paid a sum of Rs.11,000/-.

Let a copy of this judgment be sent to learned trial Court for information and its necessary compliance.

(Ajai Kumar Srivastava-I,J.)

Order Date :- 12.7.2022

Mahesh