Rinkoo Singh @ Arun Kumar Singh vs State Of U.P.
2023 Latest Caselaw 9381 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL APPEAL No. - 916 of 2006
 

 
Appellant :- Rinkoo Singh @ Arun Kumar Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Mohd. Alam,Ashok Kumar Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Ashok Kumar Mishra, learned counsel for the appellant as well as learned A.G.A. for the State and perused the record.

The instant appeal under Section 374 (2) Cr.P.C. has been filed by the appellant- Rinkoo Singh @ Arun Kumar Singh against the judgment and order of the trial court dated 23.03.2006 passed by learned Additional Sessions Judge/ Fast Track Court, Balrampur in Sessions Trial No. 6/2003, Crime No. 638/2002, under Section 8/20 N.D.P.S. Act, Police Station- Kotwali Nagar, District- Balrampur whereby the appellant has been convicted for offence under Section 8/20 N.D.P.S. Act and sentenced to undergo rigorous imprisonment from 08.11.2002 till 05.03.2003.

The prosecution story as is evident from the record is that on 06.11.2002 at about 08.30 PM, the police party was returning to police station concerned after searching the whereabouts of wanted criminals and when they arrived near 'Kalidhan', appellant who was wanted in some other criminal case, was seen coming from the side of Balrampur, holding a plastic bag in his right hand. On being asked to stop, he started running, however, was apprehended by the police personnels and on being asked, he informed that he is carrying 'ganja' in the bag and is going to market to sell it. On this, the police party gathered information about the whereabouts of the Circle Officer of the police and when it is informed that the Circle Officer of the police is available at his house, the appellant was taken to the house of Circle Officer of the police and it was in front of the Circle Officer of the police, the person of the appellant was searched and from the bag, which he was holding in his right hand, about 1 Kg. of 'ganja' was recovered which was sealed at the spot and a small quantity of about 50 gms was also taken as sample and also sealed for the purpose of specimen. The appellant was arrested and taken to the concerned police station along with contraband recovered and Case Crime No. 638/2002, under Section 8/20 N.D.P.S. Act was registered against him at Police Station- Kotwali Nagar, District- Balrampur.

The investigating officer after investigation submitted the charge sheet under Section 8/20 N.D.P.S. Act.

During the course of trial, the charges against the appellant was framed under Section 8/20 N.D.P.S. Act to which he denied and claimed trial.

During the Course of trial, the prosecution has presented P.W.-1/ Investigating officer/ Sub-inspector Gaya Nath Rao, P.W.-2/ informant Sub-inspector Ramji Yadav, P.W.-3/S.I. Harishankar Singh and P.W.-4/Constable Qutubuddin and apart from the above mentioned oral evidence, the prosecution has also relied on various documentary evidence including the chik F.I.R., G.D. Qayami, recovery/seizure/arresting memo, charge sheet and result of FSL.

After conclusion of the evidence of the prosecution, the statement of the appellant was recorded under Section 313 of the Cr.P.C. wherein he denied the incident and the evidence of the prosecution and further stated that he is a student and in connection with the 'students' union's election, he was having dispute with one student Arvind and it is on his behest, he has been falsely implicated in this case. Appellant in his defence has also produced D.W.-1/ Jainendra Bahadur Singh.

The trial court after appreciating the evidence available on record, found the case of the prosecution proved beyond reasonable doubt and has convicted and sentenced the appellant in the manner mentioned in the paragraph No.2 of this judgment.

Learned counsel for the appellant while drawing the attention of this Court towards the evidence of the prosecution witnesses vehemently submits that the trial court has committed manifest illegality so far the appreciation of evidence is concerned and has convicted the appellant for the offences which have never been committed by him.

It is further submitted that it was an admitted case of the prosecution that no opportunity of being searched before a Magistrate was given to the appellant while as per the mandate of Section 50 of the N.D.P.S. Act, it was duty of the police party to comply the mandatory provision of Section 50 of the N.D.P.S. Act in 'letter and spirit' and an option must have been provided to the appellant to be searched either before the 'Gazetted Officer' or the 'Magistrate' concerned and when no such option has been provided to the appellant, the recovery, if any, has been made in violation of Section 50 of the N.D.P.S. Act and is void ab initio.

It is also submitted that admittedly no offer has been made by the police party to search and procure independent public witnesses, even after the apprehension of the appellant and thus, in absence of independent public witnesses, the story as has been cooked up by the prosecution could not be believed.

It is next submitted that there are material contradictions in the testimonies of the prosecution witnesses, so far as the timing of arrest and keeping of the seized contraband in safe custody is concerned as no register of the 'Malkhana' has been produced before the trial court which may suggest that the sample allegedly made on the spot was preserved in safe custody and was not mal-handled and was not fabricated.

It is also submitted that even the 'malkhana-incharge' of the concerned police station was not produced as a witness to show that the sample allegedly taken on the spot was kept in safe custody, therefore, the link evidence pertaining to the safe custody of the contraband has not been produced and this issue has not been properly appreciated by the trial court.

It is further submitted that the contradictions occurring between the testimonies of the prosecution witnesses were of such a magnitude that the parameter of 'proof beyond reasonable doubt' is not achieved and the law, in this regard, is well settled that when two views, one in favour of the accused and another against the accused are emerging from the same set of evidence, the duty of the trial court is to adopt the view which is in favour of the appellant. Thus, the evidence available on record has not been properly appreciated by the trial court and having regard to all the facts and circumstances and evidence available on record, the appellant is liable to be acquitted.

Learned A.G.A., on the other hand, submits that the appellant was arrested without there being any prior information of his arrival and in this scenario, it was not possible for the police party to secure/procure independent public witnesses, more so, there is strong presumption that the sample of contraband collected at the spot is kept in safe custody and no such ground was taken by the appellant before the court below.

It is also submitted that the minor contradictions which are emerging between the testimonies of the prosecution witnesses may not be sufficient to discard their testimonies, if the core of the prosecution case is intact. Thus, there is no illegality or to say any irregularity in the impugned judgment and order, therefore, the judgment and order of the trial court be sustained.

Having heard learned counsel for parties and having perused the record, it is evident that the case of the prosecution is to the tune that on 08.11.2002, the appellant was apprehended by the police party at about 08.30 PM and when he informed that he was having 'ganja' in his possession (in a bag carried by him), he was taken to the residence of the Circle Officer of the police and in front of the Circle Officer of the police, his person as well as the bag was searched and from the bag 1 kg. of 'ganja' was recovered, out of which 50 gms was taken out as sample and the police party had taken the appellant and contraband including the sample made at the spot to police station concerned and the first information report of the instant case was lodged.

Perusal of the record would further reveal that the police personnel, after getting knowledge of the fact that that the appellant is possessing 'ganja' with him, had taken him to the residence of the Circle Officer and it was in front of the Circle Officer of the police, the person as well as the bag wherein the appellant was carrying 'ganja' was searched. There is nothing on record which may suggest that in the year 2002, Circle Officer of the police, having regard to its pay-scale, was a 'Gazetted Officer'. Therefore, there is absolutely no evidence on record which may suggest that the Circle Officer of the police in the year 2002 was a Gazetted Officer.

It is also inferred that the appellant was not at all given any option to be searched before a Magistrate, which was a mandatory requirement, so far as compliance of Section 50 of the N.D.P.S. Act is concerned. The police party, even after acceptance of the option to be searched before the Magistrate, was not bound to take appellant to a Magistrate and he may be taken to a Gazetted Officer, if the Gazetted Officer was easily available, but the object of the police personnel to inform the appellant in categorical terms that appellant is having a right to be searched before a Gazetted Officer or a Magistrate is for the purpose of injecting credibility in its story. This right i.e., to be seearched before Magistrate, admittedly has not been communicated to the appellant by police party.

There cannot be any other proposition than the fact that the recovery/ arrest which has been made in sheer violation of Section 50 of the N.D.P.S. Act is 'void ab initio'.

Another glaring circumstance which is appearing is pertaining to the safe custody of the 'sample' which has been allegedly collected before the Circle Officer of the police and significantly, the Circle Officer of the police, before whom the appellant was allegedly searched, for the reasons best known to the prosecution, was not produced as a witness before the trial court. Therefore, it is also in doubt as to whether any sample was taken before Circle Officer of the police. The prosecution, in order to prove the safe custody of the 'sample' failed to prove that the sample was kept in safe custody and there was no opportunity for any one to temper it and in this regard, no register of the police station has been presented before the trial court nor the evidence of the constable/clerk or of the Malkhana-incharge of the police station was recorded before the trial court pertaining to the safe custody of the sample. Therefore, the mal-handling of the sample in absence of any specific evidence with regard to the safe custody, could not be ruled out.

In this regard, the evidence of D.W.-1/ Jainendra Bahadur Singh, is also relevant wherein he had stated that at the relevant point of time, the appellant was with him and appellant was having enmity with one Manoj, who was also a student. It is to be recalled that different standards could not be adopted for appreciating the evidence of prosecution witnesses and defence witnesses. It is only the trustworthiness of the witness which may count for the purpose of accepting or rejecting his testimony. An accused of a criminal case is having a presumption of innocence in his favour and the same could be dis-lodged by the prosecution by producing the evidence of a character which may result in fetching proof beyond reasonable doubt. It is not clarified as to why the mandatory provision of Section 50 of the N.D.P.S. Act was not complied by the police party in 'letter and spirit' and why the accused-appellant despite being apprehended on the spot was taken to the Circle Officer of the police, more so, in absence of any evidence pertaining to the Circle Officer being a Gazetted Officer, as the incident is admittedly of the year 2002. It could also not be accepted that C.O. police at that point of time, was a gazetted officer. The link evidence pertaining to the safe custody of sample has also not produced. Admittedly, no option was given to the appellant to be searched before the 'Magistrate' or even before a Gazetted Officer and the appellant admittedly was taken in front of the Circle Officer of the Police, before whom his person or the bag is stated to be searched. However, the Circle Officer of the police, before whom, the appellant was searched, did not dare to step into the witness box in order to testify that the personal search as well as the search of the bag which the appellant was carrying was held in his presence. Thus, in the considered opinion of this Court, the cumulative effect of the discrepancies mentioned hereinbefore is that the prosecution has failed to prove its case beyond reasonable doubt and the benefit of reasonable doubt appearing in the case of prosecution, may safely be extended to the appellant.

Thus, for the reasons mentioned hereinbefore, the impugned judgment and order could not be sustained and is liable to be set aside.

Resultantly, the appeal preferred by the instant appellant-Rinkoo Singh @ Arun Kumar Singh is allowed and the judgment and order of the trial court dated 23.03.2006 passed by learned Additional Sessions Judge/ Fast Track Court, Balrampur in Sessions Trial No. 6/2003, Crime No. 638/2002, under Section 8/20 N.D.P.S. Act, Police Station- Kotwali Nagar, District- Balrampur, is set aside.

The appellant is already on bail. He need not to surrender and is set at liberty forthwith. The bail bond and personal bond filed by him, in the instant appeal shall remain in operation for the next six months in order to secure his presence, if any appeal is filed by the State against the instant order.

Let a copy of this judgment along with record of the trial court be immediately transmitted to the trial court for compliance.

The contraband which is shown to have been seized from the appellant and is stated to be kept in safe custody of the concerned police station shall be disposed of in accordance with the provisions contained under N.D.P.S. Act.

Order Date :- 31.3.2023

Gurpreet Singh