Unknown vs Rajbir
2021 Latest Caselaw 59 UK

                                      Reserved Judgment

         IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                          BEFORE:
             HON'BLE ALOK KUMAR VERMA, J.

          GOVERNMENT APPEAL NO.196 OF 2007

BETWEEN:
State




of Uttarakhand                      ....Appellant

(By Sri Subhash Tyagi Bhardwaj, learned Deputy Advocate
General for the State/appellant.)


AND :

Rajbir                                    ......Respondent

(By Sri Lalit Sharma, learned counsel for the respondent).



                              Reserved on: 12.03.2020
                              Delivered on: 07.01.2021


                          ORDER

This Government appeal is directed against the judgment and order dated 20.05.2006, passed by learned Additional Sessions Judge/IVth F.T.C., Haridwar in Special Sessions Trial No. 66 of 2004, "State vs. Rajbir, whereby the learned trial court acquitted the respondent-accused from the offence under Section 18/20 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as, "Act, 1985").

2. Briefly stated the prosecution story as it emerges from re-appreciation of the evidence on record is that on 25.09.2004, PW-2 Sub-Inspector Rajesh Chandra Sharma was present at Police Chowki Jagjeetpur. He received an information from his secret informant that two persons would come from Haryana to go by bus from Singhdwar and they had charas. This information was reduced to writing in the General Diary. He along with Constable Om Pal Singh, Constable Shiv Kumar and the informant left for the spot. The members of the raiding party searched each other at the Police Chowki. On the way, they tried to associate public witnesses in the raiding party, but none joined. An attempt was made to inform these facts to the Sub Divisional Magistrate and the Circle Officer, City, but, they could not be contacted. They reached Jagjeetpur in front of a Petrol Pump. At around 6:30 p.m., two persons were seen coming from Pherupur carrying bags. The informant identified them. At that time, the appellant-accused was coming carrying a bag of white cloth in his right hand. He was stopped by the raiding party. He was enquired of his name and address. He disclosed his name and address. On checking the said bag, half kilogram charas was found. After the said recovery, an option was given to him for being searched in the presence of either a Gazetted Officer or a Magistrate. He declined the offer. He was arrested after informing him the reason of his arrest. A sample of the said contraband was separated. The sample and the remaining quantity were separated sealed. A fard (memo), Ext. Ka-1, was prepared in the light of torch. A

large number of people were present there, but none was ready to give evidence. An F.I.R., Ext. Ka-6, was registered at 20:30 on 25.09.2004. The sample of 20.5 gm was sent to the Forensic Science Laboratory, Uttar Pradeh, Lucknow for chemical analysis. On chemical analysis, the identity of the said article has been established as, charas. After completion of investigation, the appellant-accused was charge-sheeted.

3. The charge was framed under Section 18/20 of the Act, 1985. The appellant-accused denied the charge and claimed to be tried.

4. In order to bring home the guilt of the accused, the prosecution examined as well as four witnesses.

5. Statement of the accused-appellant is recorded under Section 313 of the Code of Criminal Procedure, 1973, wherein he denied the entire evidence and stated that he had come to shed the ashes of the neighbor's wife and he was falsely implicated due to a dispute with the police.

6. The appellant-accused did not adduce any evidence.

7. Learned trial court heard arguments, appreciated the evidences and held that the prosecution has not been successful to prove its case against the accused beyond all reasonable doubt.

8. Heard Mr. Subhash Tyagi Bhardwaj, learned Deputy Advocate General for the State/appellant and Mr. Lalit Sharma, learned Advocate for the respondent.

9. Mr. Subhash Tyagi Bhardwaj, learned Deputy Advocate General for the appellant submitted that PW-1 constable Om Pal Singh and PW-2 Sub-Inspector Rajesh Chandra Sharma were members of the raiding party and they have fully supported the prosecution case. The sample of the recovered charas was sent to the Forensic Science Laboratory and according to the report of the Forensic Science Laboratory, the sample was found to be charas. The trial court has not weighed and assessed the prosecution evidence since the material evidence available on record. Therefore, the order of acquittal is not justified in the eyes of the law.

10. On the other hand, Mr. Lalit Sharma, learned counsel appearing for the respondent, supported the impugned judgment and order and submitted that there are certain discrepancies in the testimonies of the prosecution witnesses and violation of Section 55 of the Act, 1985.

11. The law is well settled that order of acquittal strengthens the presumption of the innocence of the accused. It is equally the duty of the court to see that the guilty do not escape punishment. Therefore, I have carefully assessed the evidences adduced by the prosecution.

12. PW-1 constable Om Pal Singh and PW2 Sub- Inspector Rajesh Chandra Sharma were members of the raiding party. PW-4 Sub-Inspector T.S. Garoriya is Investigating Officer. PW-4 Sub-Inspector T.S. Garoriya went on leave, then PW-3 Sub-Inspector B.S. Bhakuni further investigated the matter and charge-sheet, Ext. Ka-2, is filed by him.

13. According to PW-1 Constable Om Pal Singh and PW-2 Sub-Inspector Rajesh Chandra Sharma, on 25.09.2004, PW-2 Sub-Inspector Rajesh Chandra Sharma was present at Police Chowki Jagjeetpur. He received a secret information from the secret informant that two persons would come from Haryana to go by bus from Singhdwar and they had charas. This information was reduced to writing in the General Diary. Then, they and Constable Shiv Kumar along with the informant left for the spot. These police personnel searched each other at the Police Chowki. On the way, they tried to associate public witnesses in the raiding party, but none joined. An attempt was made by PW-2 Sub-Inspector Rajesh Chandra Sharma to inform these facts to the Sub-Divisional Magistrate and Circle Officer, City, but, they could not be contacted. They reached Jagjeetpur in front of a petrol pump. At around 6:30 p.m., they saw two persons coming from Pherupur carrying bags. The informant identified them. They were stopped by the raiding party. The appellant-accused was enquired of his name and address. He disclosed his name and address. On checking his white cloth bag, half kilogram charas was found. After the said recovery, an option was given to him for being searched in the presence of either a Gazetted Officer or a Magistrate. He declined the offer. He was arrested after informing him the reason of his arrest. The fard was prepared in the light of the torch. A sample of the recovered charas was separated. The sample and the remaining quantity of charas were separated sealed.

14. PW-1 Constable Om Pal Singh and PW-2 Sub- Inspector Rajesh Chandra Sharma stated that the

information received by the secret informant was reduced to writing in the General Diary. But, both these witnesses admitted in their cross-examination that the said General Diary is not produced. PW-2 Sub-Inspector Rajesh Chandra Sharma in his cross-examination stated that he does not remember the time of entry of the said information in the General Diary. The document required to prove the receipt of oral information of the secret informant is not brought on record. No explanation has been furnished by the prosecution for non-production of the General Diary. The absence of explanation from the prosecution for non- production of the General Diary undermines its case and reduces the evidentiary value of the statements made by the witnesses.

15. Besides the above mentioned inadequacies, there are certain glaring discrepancies in the evidences of the prosecution witnesses that gives rise to suspicion of truthfulness of the witnesses. PW-1 stated in his cross- examination that they searched each other at the Police Chowki and this witness was searched by the Constable Shiv Kumar and PW-2 was searched by this witness, whereas, PW-2 stated in his cross-examination that both the police personnel were searched by him and this witness was their officer, so they did not search him. PW-1 stated that during the search and arrest of the accused, the public was present on the spot, whereas, PW-2 stated in his cross-examination that no public was present at the spot. According to the prosecution, on the way to the place of recovery, the raiding party tried to associate public witnesses. But, the names of the persons who refused to be a witness had not been

recorded. Both these witnesses stated in their cross- examinations that the recovered charas was sealed after preparing the fard. These statements are found against the Fard Ext. Ka-1. In the Fard, it is mentioned that the sample and the remaining charas were sealed. PW-1 stated in his cross-examination that the accused was coming from the south. The site plan, Ext. Ka-4, was prepared by PW-4 and according to this site plan, the accused was going from the west towards the east. PW-1 stated in his cross-examination that the accused was taken to the police station from the recovery site on a Three Wheeler, whereas, PW-2 stated in his cross-examination that the accused was taken to the police station from the place of recovery on a Matador. According to the prosecution, a copy of the fard was given to the appellant but the said copy of the fard was not recovered during the search of the appellant in the police station.

16. In State of Punjab vs. Baldev Singh, (1999)6 SCC 172, the Hon'ble Supreme Court noticed Miranda vs. Arizona, 384 US 436 in the following terms:

"30. In D.K. Basu case the Court also noticed the response of the Supreme Court of the United States of America to such an argument in Miranda vs. Arizona wherein that Court had said:

"The Latin maxim salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine

that the welfare of an individual must yield to that of the community. The action of the State, however, must be "right, just and fair".

17. A duty has been casted upon the officer-in-charge of the police station to take charge of the case property and to place it in safe custody. No evidence is produced by the prosecution that the officer-in-charge of the concerned police station had taken the charge of the case property of this matter and the said case property was kept in a safe custody. Therefore, in the instant case, there is non- compliance of Section 55 of the Act, 1985.

18. According to PW-4 Sub-Inspector T.S. Garoriya, Investigating Officer, the alleged charas was recovered on 25.09.2004. The sample taken from the seized article was sent to the Forensic Science Laboratory, Agra on 30.10.2004. There is no evidence whatsoever as to where the said sample had been kept after the same was taken. No evidence is produced as to where it was kept till it was produced in the court and no evidence is on the record when the sample was kept for safe custody. No evidence is produced that till the date the parcel of sample was received by the Forensic Science Laboratory, i.e. till 30.10.2004, the seal put on the said parcel was intact and there was no tampering with the seal at any stage and the sample received by the Forensic Science Laboratory contain the same article which was recovered from the possession of the appellant. Thus, a prejudice was caused to the appellant because of non-compliance of the provisions of Section 55 of the Act, 1985 which was meant to safeguard the interest of the accused. Apart this, no positive evidence is on record to

connect the forensic report with the substance that was allegedly seized from the possession of the appellant.

19. It is well settled that the provisions of the Act, 1985 being harsh in nature, the procedural safeguards contained therein must scrupulously be complied therewith.

20. In Gorakh Nath Prasad vs. State of Bihar, 2018(1) CCSC 28(SC), the Hon'ble Supreme Court held that the N.D.P.S. Act provides for a reverse burden of proof upon the accused, contrary to the normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. This shall not dispense with the requirement of the prosecution to having first establish a prima facie case, only whereafter the burden will shift to the accused. The mere registration of a case under the Act will not ipso facto shift the burden on to the accused from the very inception. Compliance with statutory requirements and procedures shall have to be strict and the scrutiny stringent. If there is any iota of doubt the benefit shall have to be given to the accused.

21. Going by the number of discrepancies in the prosecution case coupled with the contradictory statements by prosecution witnesses, the entire prosecution story vitiates and leads for discrediting its version. On a close scrutiny of the evidence, these discrepancies are found comparatively of a major character and go to the root of the prosecution case.

22. On a detailed examination and scrutiny of the evidence of the prosecution, this Court uphold the view taken by learned trial court. In my considered view, the

prosecution has failed to establish the commission of alleged offence by the respondent-accused beyond all reasonable doubt. He deserves benefit of doubt. I am, therefore, in complete agreement with the view taken by learned trial court and see no reason to interfere with the judgment and order impugned herein.

23. As a result, the instant appeal is liable to be dismissed. The appeal is dismissed accordingly.

24. The respondent-Rajbir is directed to make compliance of Section 437-A of the Code of Criminal Procedure, 1973 within three weeks from the date of this order by appearing before the court concerned and execute a personal bond and two reliable sureties, each in the like amount to the satisfaction of the court concerned, which shall be effective for a period of six months.

25. Let a copy of this order be sent to the concerned court for intimation and compliance.

(Alok Kumar Verma, J.) 07.01.2021 JKJ/Sanjay