Unknown vs Mahfooj"
2023 Latest Caselaw 1452 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

      THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                       23rd MAY, 2023

           GOVERNMENT APPEAL NO.96 OF 2008


Between:


State of Uttarakhand                             .....Appellant


And


Mahfooj                                  ................Respondent


Counsel for the Appellant     :     Mr. S.S. Adhikari,
                                    Deputy Advocate
                                    General assisted by Mr.
                                    B.S. Thind, Brief
                                    Holder for the State.

Counsel for the Respondent    :     Mr. Sajjad Ahmed,
                                    Advocate (through video
                                    conferencing) with Mr.
                                    Mohd. Umar, Advocate.



Hon'ble Alok Kumar Verma, J.

Present Government Appeal has been filed against

the judgment dated 06.07.2004, passed by learned Ist

FTC/Additional Sessions Judge, Haridwar in Special Criminal

Case No.16 of 2001, "State vs. Mahfooj", by which, the

respondent - accused has been acquitted of the charge

under Section 8/15 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (in short, ''Act, 1985").

2. The prosecution case, briefly stated, is that on

26.06.2001, Sub-Inspector Gyanendra Singh Rana (PW1),

Sub-Inspector Rajendra Kumar Tyagi (PW2) and Head

Constable Sahab Singh (PW3) were present on patrolling

duty. They received a secret information that a person is

going towards Arya Nagar carrying poppy straw in his bag.

In spite of an endeavour, no public witness could be

secured. Accordingly, a raid was conducted. Respondent -

accused was apprehended. On enquiry, he disclosed his

name and address. He informed them that he had poppy

straw in his bag. They apprised him that they intend to

search him and whether he wishes to be searched in the

presence of a Gazette Officer or a Magistrate. He gave his

consent for being searched before them. Accordingly, a

search was conducted. During the search of his bag, they

found 4 kg. 500 grams of poppy straw (Material Ext.3) in his

blue colored polythene bag (Material Ext.2). He was arrested

at 11:15 a.m. The recovered contraband was sealed. The

said contraband was taken into possession vide Recovery

Memo (Ext. Ka1). An FIR (Ext. Ka.2) was lodged by

Gyanendra Singh Rana (PW1). The said contraband was sent

to the Chemical Examiner, who found the same to be "poppy

straw". Charge-sheet was submitted after completion of the

investigation.

3. Charge under Section 8/15 of the Act, 1985 was

framed. Accused pleaded not guilty and claimed to be tried.

4. At the trial, the prosecution examined four

witnesses.

5. (PW1) Gyanendra Singh Rana, (PW2) Rajendra

Kumar Tyagi and (PW3) Sahab Singh were members of the

raiding party. (PW4) Sub-Inspector Dev Raj Singh Rathi is

Investigating Officer.

6. Statement of the accused was recorded under

Section 313 of the Code of Criminal Procedure, 1973. He

denied all the incriminating evidence, produced by the

prosecution.

7. Accused did not adduce any defence evidence.

8. Learned Trial Court heard arguments of both the

parties, appreciated the evidence and passed the impugned

judgment, by which, respondent - accused has been

acquitted.

9. Mr. S.S. Adhikari, learned Deputy Advocate

General for the State, argued that in order to prove its case,

prosecution examined four witnesses and they have

supported the prosecution case. Respondent denied the

prosecution case and has stated that he has been falsely

implicated, but, he did not produce any evidence in his

defence. Therefore, learned Trial Court has committed

manifest error in disbelieving the evidence of the

prosecution's witnesses.

10. On the other hand, Mr. Sajjad Ahmed, Advocate

appearing for the respondent, has supported the impugned

judgment.

11. As per the Table prepared in terms of Section

2(xxiii-a) and Section 2(vii-a) of the Act, 1985, 1,000 grams

of poppy straw is small quantity and greater than 50 kg. of

poppy straw is commercial quantity (Entry No.110).

Therefore, according to the prosecution, the recovered

poppy straw was non-commercial.

12. The onus is on the prosecution to prove that the

seized material was in safe custody. The prosecution must

prove that the seized material before being sent to the

laboratory for testing was kept in safe custody.

13. Section 55 of the Act, 1985 deals with the

procedure to be followed by Officer-in-Charge of a police

station. According to the said provision, an Officer-in-Charge

of the police station shall take charge for safe custody of

articles seized under the Act and shall allow the officer

bringing such articles to affix his seal to such articles and

the Officer-in-Charge shall also seal the articles with his own

seal. Therefore, the sealing process should be according to

the provisions of Section 55 of the Act, 1985.

14. (PW1) Sub-Inspector Gyanendra Singh Rana, a

member of the raiding party and informant of the First

Information Report, has stated that after coming to the

police station, he neither produced the case property and

recovery memo before the in-charge police station, nor did

the in-charge of police station put his seal on it.

15. (PW2) Sub-Inspector Rajendra Kumar Tyagi, a

member of the raiding party, has stated that Kuldeep Aswal

was the Station House Officer of the police station at the

time of the incident. He further stated that the accused and

the recovered material were neither produced before the

Station House Officer nor his seal was affixed on the

recovered contraband.

16. Malkhana register of the police station was not

produced before the Trial Court. There is no evidence on

record to show that the seized material was kept in the safe

custody. Therefore, the prosecution evidence is wholly

unconvincing so far as it relates to the question of safe

custody of the alleged recovered contraband.

17. The contraband was received by the Forensic

Science Laboratory, Agra on 28.06.2001. During this period,

it was not tampered with, this fact has not been proved by

the prosecution beyond reasonable doubt.

18. There is no material on record to show in whose

custody and where the seized material was kept from the

time of seizure till the time it was received by the

laboratory. This is big unexplained gap as regards the safe

custody of the alleged recovered contraband, which makes

the prosecution case doubtful.

19. As per the prosecution case, 4 kg. 500 grams of

poppy straw was recovered from the possession of the

accused and entire recovered contraband was sent to the

laboratory for testing. The Laboratory's report indicates that

4 kg. 250 grams of poppy straw was made available to the

laboratory. While Head Constable Sahab Singh (PW3) has

given a statement that 100 grams of poppy straw was taken

out for sample from the recovered poppy straw. These

contradictory statements have also not been explained by

the prosecution.

20. The person by whom the recovered contraband

was made available to the laboratory has also not been

clarified by the prosecution, while it has been stated by Sub-

Inspector Dev Raj Singh Rathi, Investigating Officer, that the

recovered contraband was not sent by him for testing.

21. As per the Recovery Memo (Ext. Ka.1), poppy

straw was recovered from the blue colored polythene bag

carried by the accused. During the trial, when polythene bag

(Material Ext. 2) and poppy straw (Material Ext. 3) were

produced, it was deposed by all the witnesses of the raiding

party that the said bag (Material Ext. 2) was green in colour.

This material contradiction has also not been explained by

the prosecution.

22. The link evidence suffers from the lacunae.

Neither the Malkhana register of the police station was

producing nor any reason has been given by the prosecution

for not producing the Malkhana register. The prosecution has

not proved beyond reasonable doubt that after the seizure,

the alleged recovered contraband was kept in safe custody

in the Malkhana of the police station till it was sent to the

laboratory. The variation in the weight of the contraband

and difference of colour of the polythene bag (Material Ext.

2) indicate that either the said contraband was tampered

with or the contraband sent to the laboratory was not the

contraband which was alleged to have been recovered from

the respondent - accused.

23. Under the said circumstances, the case of the

prosecution becomes doubtful. Therefore, I am in complete

agreement with the view taken by learned Trial Court and

see no reason to interfere with the judgment impugned

herein.

24. As a result, the instant Government Appeal is

liable to be dismissed; the same is dismissed accordingly.

__________________ ALOK KUMAR VERMA, J.

Dated : 23rd May, 2023 Pant/