RESERVED
In Chamber
Case :- JAIL APPEAL No. - 7242 of 2017 Appellant :- Alok Prajapati Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Seema Pandey Ac Counsel for Respondent :- A.G.A.
Hon'ble Virendra Kumar Srivastava,J.
1. This appeal has been preferred against judgement and order dated 22.6.2017 passed by the Addl. Sessions Judge, Court no. 1, Allahabad in Special Trial No. 149 of 2012 (State Vs. Alok Prajapati) u/s 8/21 Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'N.D.P.S. Act”), whereby appellant- Alok Prajapati has been convicted u/s 8/21 N.D.P.S. Act and sentenced to rigorous imprisonment of 5 years, 4 months and 10 days alongwith fine of Rs. 3000/- and in default whereof he has been further convicted for simple imprisonment for 15 days.
2. Briefly stated the facts of the prosecution case are that on 12.2.2012 Sub-Inspector Chandrama Yadav alongwith his official was on patrolling duty and was going towards east side of platform no. 1 of railway station, Allahabad via M.C.O. Office. Meanwhile, Head const. Jaijai Ram, Const. Suryanath Yadav and Const. Arvind Kumar Yadav met him and when he reached alongwith his team at platform no. 4/6, S.I. R.P.F. Prahlad Singh and Const. Uma Shankar Tiwari and Const. Sri Krishna Tiwari also met him. Meanwhile they got an information that two criminals (Jahar Khuran) who used to mix poisonous/intoxicated diazepam and tablets in edible items of passengers, were present near the toilet situated at the platform. On believing that information might be true, police party led by S.I. Chandrama Yadav reached on that place as pointed out by the informer and asked the persons present nearby them to join as witness but none had given his assent.
3. The police party alongwith the informer searched out themselves personally and after satisfaction that no objectionable article was with them, reached at the place pointed out by the informer and caught two persons near the toilet situated at the platform no. 4/5 at 3:35 p.m. On interrogation one person told his name as Alok Prajapati (appellant) and another as Irfan Ahmed (co-accused). On further interrogation they told that they had intoxicated diazepam powder which was used by them in edible items and tea taken by the passengers and as the passengers got unconscious they stole their luggage. Thereupon they were told that their personal search would be conducted before Magistrate/Gazetted Police Officer. Deputy S.P./C.O. Railways, Allahabad was informed telephonically and thereafter he reached at the place of occurrence.
4. The arrested persons were searched out personally before Deputy S.P./C.O. Railways, Allahabad. Upon search a white colour powder wrapped in newspaper and kept in polythene was recovered from backside pocket of jeans pant of appellant- Alok Prajapati whereas white colour intoxicated powder wrapped in newspaper in plastic was recovered from right backside pocket of jeans pant of co- accused- Irfan Ahmed. They failed to justify the possession of the recovered article. On being weighed by weighing scale it was found that the intoxicated diazepam powder recovered from personal search of appellant was 135 gms and the weight of diazepam powder recovered from co-accused was 145 gms. The appellant alongwith co- accused was arrested after due information of their offence. The recovered diazepam powder was sealed separately and the sample seal was also prepared. Seizure memo was prepared and got signed by Deputy S.P./C.O. Railways, Allahabad and other police party. Copy of the seizure memo was given to accused appellant and other co- accused.
5. On the basis of the seizure memo first information report in Case Crime No. 59/2012 u/s 8/21 N.D.P.S. Act was lodged against accused appellant- Alok Prajapati and investigation was handed over to S.I. Arvind Kumar Trivedi who during investigation inspected the place of occurrence, took the statement of police personnel, sent the recovered article to Forensic Science Laboratory, Ramnagar, Varanasi, for chemical examination and submitted charge sheet u/s 8/21 N.D.P.S. Act against the accused-appellant.
6. The trial court framed the charge u/s 8/21 N.D.P.S. Act against the appellant and read over him to which he pleaded not guilty and claimed for trial. During trial prosecution examined Const. Chitaranjan Ram (P.W.1) who proved F.I.R. chick (Ex.ka 1) and G.D. Entry (Ex.ka-2)
7. The genuineness of the documents filed by the prosecution seizure memo (Ex.ka-3), site plan (Ex.ka-4), charge sheet (Ex.Ka-6) and forensic science report (Ex.ka-5) were admitted before the trial court by the defence counsel appearing for the accused-appellant, Alok Prajapati. Appellant had also filed an application wherein he had confessed his guilt.
8. Statement of accused-appellant was recorded u/s 313 CrPC wherein he had not disputed the prosecution evidence and further he admitted the offence charged against him. Trial court after conclusion of trial found the appellant guilty for offence u/s 8/21 N.D.P.S. Act, convicted and sentenced him as above. Feeling aggrieved the appellant has preferred this appeal.
9. Heard Ms. Seema Pandey, learned Amicus Curiae for the appellant and learned AGA for the State.
10. Learned Amicus Curiae has submitted that the alleged recovery was made in day light at 3:35 p.m. and at crowded public place but no independent person was made as witness to the said recovery. She further submitted that the alleged recovery was made before the gazetted police officer but he was not made as a witness. The prosecution has failed to prove its case beyond reasonable doubt, hence, the impugned judgment and order is illegal and liable to be set aside.
11. Learned AGA appearing for the State vehemently refuting the contention raised by learned Amicus Curiae has submitted that the alleged recovery has been made as per norms of N.D.P.S. Act in the presence of gazetted police officer. No illegality or irregularity has been committed in the alleged recovery. The appellant himself has confessed and admitted the alleged offence during trial. The defence counsel has also admitted the genuineness of the documentary evidence of prosecution. The impugned judgment and order passed by the learned Trial Court is legal and justified. Appeal is liable to be dismissed.
12. From perusal of the record it transpires that the accused- appellant had voluntarily filed an application before the trial court on 7.6.2017 wherein he had confessed his guilt and prayed for a minimum sentence. Learned counsel for the appellant had also admitted the genuineness of all the relevant documents filed by the prosecution i.e. seizure memo (Ex.Ka 3), site plan (Ex. Ka 4), charge sheet (Ex. Ka 6) and forensic science report (Ex.ka 5).
13. From perusal of all these documentary evidence it is clearly proved that accused-appellant was caught by the police party as per the norms of N.D.P.S. Act and upon search 135 gms of diazepam powder was recovered from his possession and the recovered contraband article was found after chemical examination by forensic science laboratory as diazepam. Section 58 of the Evidence Act, 1872 clearly provides as under :-
'58. Facts admitted need not be proved No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the fine they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.'
Section 294 CrPC, 1973, also provides that accused (defence) can admit the genuineness of any document filed by the prosecution in evidence and if the genuineness of any document is admitted by defence, no further proof by prosecution is required during trial. Discussing the scope of admissibility in evidence of such documents admitted by the counsel for prosecution or defence, the Hon'ble Supreme Court in Shamsher Singh Verma Vs. State of Haryana reported in (2016) 4 SCC (Cri.) 683, held as under:-
It is not necessary for the court to obtain admission or denial on a document under sub-section (1) to Section 294 CrPC personally from the accused or complainant or the witness. The endorsement of admission or denial made by the counsel for defence, on the document filed by the prosecution or on the application/report with which same is filed, is sufficient compliance of Section 294 CrPC. Similarly on a document filed by the defence, endorsement of admission or denial by the public prosecutor is sufficient and defence will have to prove the document if not admitted by the prosecution. In case it is admitted, it need not be formally proved, and can be read in evidence. In a complaint case such an endorsement can be made by the counsel for the complainant in respect of document filed by the defence.
Thus the documents which were admitted by the learned counsel for the appellant are required no further proof and trial court committed no error in relying on such documents.
14. In addition to above, from perusal of F.I.R. (Ex.Ka 1) and G.D. Report (Ex.Ka 2) which were proved by Const. Chitaranjan Ram (P.W. 1) it further transpires that the F.I.R. was lodged on 12.2.2012 at 5:45 p.m. on the basis of seizure memo prepared by S.I. Chandrama Yadav. It is also pertinent to note at this juncture that accused- appellant has also admitted his guilt in his statement u/s 313 CrPC, recorded by trial court on 8.6.2017 and the judgement was delivered by the trial court on 22.6.2017 after hearing arguments of both the parties. The accused-appellant has not taken any plea regarding any prejudice caused to him.
15. In Ram Kishun Vs State of Uttar Pradesh, 1996 Cr.L.J. 440, the Division Bench of this Court, where similar question was involved as to whether in murder trial the trial court can convict the accused on admission of guilt made by him during trial, held as under:-
11. It is stated at the outset that plea of guilt of an accused is a voluntary act. It does not partake character of confession. The stage of investigation is over much before the stage of pleading guilt reaches.
The Judge's task is to find out truth involved in the case before him and if at any stage the accused pleads guilty and the Judge is satisfied that the said plea is voluntary plea and without any coercion, physical or mental, there is nothing in the Cr. P.C. to prevent such a guilt being recorded and thereafter on its basis, conviction can safely be recorded.
12. Moreover, in the instant case in the statement under Section 313 Cr. P.C. also the appellant has reiterated his plea of guilt. He has said it in so many words that he had killed his wife by the axe he was carrying. Under the circumstances, the trial Judge was justified in placing reliance on the said plea of guilt and rightly closed the prosecution evidence. The necessity of evidence would arise only if and when the charge is not accepted. There is no reason to restrict the applicability of Section 229 Cr.P.C. to a particular date or occasion but the purport of section is obvious that plea of guilt can be advanced by an accused at any stage of the trial after framing charge.
16. So far as the argument of learned Amicus Curiae, that no public witness was made by the police in alleged recovery and Gazetted Police Officer was not made as witness is concerned, it is settled principle of law that prosecution case cannot be disbelieved merely on the ground of absence of public witnesses. It depends on the facts and circumstances of each case. Nowadays, every person avoids to become a witness in such cases where he has no interest. In present case where defence has admitted all the relevant documents of prosecution and accused/appellant has voluntarily admitted his guilt during trial, the impugned judgement and order cannot be held illegal merely on the ground of absence of public witness. From perusal of the record it further transpires that the alleged recovery was made before Deputy S.P. Railways i.e Gazetted Police Officer as per norms of the N.D.P.S. Act. Thus the argument raised by learned Amicus Curiae has no force.
17. Thus in the light of above discussion, I am of the view that the impugned judgment and order passed by the learned trial court is according to established norms of the law. No interference is required at this stage. Appeal is liable to be dismissed. Consequently, the appeal is dismissed.
18. The learned Amicus Curiae for the appellant, Ms Seema Pandey, shall be paid a sum of Rs. 5,500/- for effective aid and assistance rendered by her in disposal of the appeal.
19. Office is directed to communicate this order to the Court concerned alongwith the lower court record for compliance.
20. The contrabands shall be disposed in accordance with law.
Order Date :- 23.01.2019 Vandana