Allahabad High Court
State Of U.P. vs Arun Kumar Pandey on 29 March, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 27
Case :- GOVERNMENT APPEAL No. - 2214 of 2010
Appellant :- State of U.P.
Respondent :- Arun Kumar Pandey
Counsel for Appellant :- Govt. Advocate
Counsel for Respondent :- Ravi Shanker Singh
Hon'ble Brij Raj Singh,J.
Heard Smt. Kiran Singh learned AGA for State appellant.
Present appeal has been filed by the State appellant challenging the judgment and order dated 1.5.2010 passed by the Additional Sessions Judge/F.T.C., Room No.9, Pratapgarh in S.T. No.35 of 2009, case crime No.108 of 2009 under Section 18/22 NDPS Act, PS Maheshganj, district Pratapgarh whereby the accused respondent has been acquitted of the charges levelled against him.
As per prosecution case, it has been mentioned that SSI Shambu Ram and other police officials were doing their duty in the area and as soon as they reached Maheshganj market, they got information from informer that the accused respondent was sitting in front of the house with illegal smack. It has been further mentioned in the memo that on the basis of the said information received, the SSI, Shambhu Ram reached the place and arrested the accused respondent who told his name and after recovery, it was found that he was in possession of smack in small packets (Puriya) put in a polythene bag. He was arrested and he said that he should not be produced before any gazetted officer for recovery and confessed the offence.
The case was registered on 16.7.2009 in case crime No.108 of 2009 under Section 18/22 of N.D.P.S. Act, PS Maheshganj, distt. Pratapgarh and chargesheet was filed in the aforesaid case. Charges were framed on 18.2.2010 under Section 18/22 of N.D.P.S. Act. The accused respondent pleaded not guilty and requested for trial.
The prosecution has produced five witnesses namely, PW-1 Vedmani Pandey,, PW-2 Shambhu Ram, PW-3 Gaya Prasad, PW-4 Amritlal Yadav, PW-5 Kalpnath Chaudhary.
The accused respondent was confronted under Section 313 CrPC and submitted that at the behest of the village Pradhan, the accused respondent had been implicated who has close proximity with the police. The trial Court adduced evidence on record and after going through the record, the trial Court acquitted the accused respondent from the charges levelled against him. Hence the present appeal by the State.
All the prosecution witness belong to police party and no independent witness has been examined in the present case. The one fact is very important that smack was recovered in the village but it is improbable that no one has turned up as witness and police has not named any witness pertaining to the same village. The PW-2 and 3 have admitted in cross-examination that no recovery was made in front of them. It is relevant to mention here that PW-2 and 3 are also police party. The police party also did not weigh the smack recovered and thus, recovery appears to be doubtful. Though, it has been admitted by the PW-3 that 25 small packets (Puriya) of smack were recovered and PW-9 has admitted that 25 small packets (Puriya) were recovered and weight was done and only one gm. smack was found. It has come on record that weight of the recovered substance was not done. The FSL report has been forwarded and in the FSL report 43.2 gms. weight is mentioned whereas, it is the case of the police party that there was 11 gms of smack.
The provision of Section 50 of NDPS Act has been violated because no witness has been examined, rather, police personnel have been made witness. Provisions of Section 57 of NDPS is also violated because no written information was given within specified time i.e., 48 hrs to any gazetted officer regarding seizure and arrest. The entire facts and evidence have been considered by the Court below and the case is highly doubtful. The relevant provisions of Section 50 and 57 have not been followed. Thus, recovery appears to be doubtful and the judgment and order passed by the trial Court dated 1.5.2010 is well reasoned judgment which needs no interference by this Court. Hence the appeal is liable to be dismissed.
Accordingly, the appeal is dismissed. Lower Court record be returned back to the Court concerned.
Order Date :- 29.3.2023
Rajneesh JR-PS)
