1. This Jail Appeal is filed by Devi Sara Punmagar against the judgment and order dated 29.03.2017 passed by Additional Session Judge / Special Judge (S.C. / S.T.) at Siddharth Nagar, in Special Criminal Case No. 27 of 2012 State of U.P. vs. Devi Sara Punmagar, Crime No. 1224 of 2012, under section 8/20 N.D.P.S. Act, Police Station- Debarua, District- Siddharth Nagar.
2. By this impugned judgment and order dated 29.03.2017 appellant Devi Sara Punmagar is convicted under section 20 (B)(ii)(C) N.D.P.S. Act and is sentenced for the rigorous imprisonment of 10 years with the fine of Rs. 1,00,000/-. It is also provided that in default of payment of fine she will undergo the additional imprisonment for 2 years.
3. In nutshell the prosecution case is that the complainant S.O. Ram Aasheesh Singh Yadav, lodged the F.I.R., on Police Station- Debarua, District- Siddharth Nagar on 28.09.2012 with these facts that when he was at Gola Market in Burni town then he received the information from informer that a women carrying Charas with her, is going from Nepal to Krishna Nagar through this way. At that time S.I. Ramesh Yadav, constable Santosh Kumar, jeep driver Nirbhay Singh was also there. On this information S.O. Ram Aasheesh Singh Yadav took Inspector Krishna Kumar, Inspector Hanuman Singh, Head Constable Indra datt, G.D. Deepak Bhanja, lady constable G.D. K Devi, lady constable G.D. Mamta Madhuri, G.D. Vijaya Yadav along with them who were present on duty of Nepal border they were also informed about the information given by the informer. On this information the police party reached at Nepal border and after some time a woman was seen, informer pointed out at the woman, when that woman entered in India she was apprehended by lady constables K. Devi, Mamta Madhuri and Vijaya Yadav at about 17:30 O'clock 10 to 15 steps in side the Indian border. On being controverted, women told her name Devi Sara Punmagar wife of Kalam Bahadur resident on Shivpur, District- Kapil Vastu, Nepal and also told that she is having 2 ½ Kg Charas in her petticoat, then S.O., and S.S.B., personnel took the search of each other and the lady constable also took the search of each other and no illegal substance was recovered from any police personnel. Accused was taking to Mahila post which was near about 150 meter away from Peelar 567/2 when the accused was searched by the lady constables then 7 packets of charas were recovered from the petticoat of the accused. Before the search, accused was told that her searched will be carried out by any gazetted officer then that lady told that she have full faith in police personnel and you can carry out her search, she has no objection. After that the search was carried out by the lady constables and recovered the 7 packets of Charas from the petticoat of the accused. Constable Santosh Kumar brought the electronic weighing machine from the shop of Sanjay Mittal and the recovered Charas was weighed-in and it was found 2½ kg in weighed, 20-20 gram Charas was taken out from all the packets as sample, and the sample was sealed in the separate cloth and the 7 packets of charas were sealed in the separate cloth. Recovery memo was prepared on the spot. Recovery memo was read over to the police personnel and got signed by the police personnel as well as the accused and one copy of recovery memo was provided to the accused.
4. On the basis of this recovery memo F.I.R., was lodged and the case was registered. After investigation I.O. Submitted the charge-sheet under section 8/20 N.D.P.S. Act and the charge was framed under section 20(B)(ii)(C) against the appellant and it was read over to the accused and which she denied and demanded the trial.
5. Prosecution examined PW1 S.I., Ramesh Yadav, PW2 Ram Aasheesh Singh Yadav, PW3 Ramlal kureel, PW4 Indrabhola Yadav, PW5 retired S.I., Ram Mukund Yadav, PW6 S.O., Shiv Varan Yadav, PW7 constable Bawanjeet Gautam. Out of these 7 witnesses examined by prosecution.
6. PW1 S.I. Ramesh Yadav, is the witness of the fact in his statement he has stated that on 28.09.2012 at 17:30 O' clock accused Devi Sara Punmagar was apprehended by the police and 2½ kg Charas was recovered from her. Recovery memo was prepared by Ram Aasheesh Singh Yadav and it was read over to them and they put their signature on recovery memo, he proved recovery memo, he also proved the material exhibit-1 Charas, material exhibit-2 polythene and cloth material exhibit-3.
7. PW2 Ram Aasheesh Singh Yadav is witness of the fact as well as the complainant of this case. He also submitted the version of prosecution and prove the recovery memo exhibit-A1 and memo of arrest exhibit-A2.
8. PW3 Ramlal kureel has proved the chik FIR and case registering G.D. Exhibit ka-3 and Exhibit Ka-4.
9. PW4 Indra Bhola Yadav proved this fact that he took the sample of the recovered Charas to forensic lab Lucknow and proved the Docket Exhibit-5.
10. PW5 retired S.I., Ram Mukund Yadav is the first Investigating Officer in this case he recorded the statement of accused Devi Sara Punmagar and witness Ramesh Yadav then he prepared the site plan and proved the site plan Exhibit-6.
11. PW6 is the second Investigating Officer in this case he recorded the statement of witnesses and submitted the charge-sheet in this case, he proved the charge-sheet Exhibit-7.
12. PW7 constable Bawanjeet Gautam, proved this fact that in the malkhana register at serial no. 136 of 2012 there is an entry of the depositing of the charas and specimen seal.
13. The statement of accused was recorded under section 313 Cr.P.C., she stated that she is falsely implicated in this case. She was going to Punjab to see her husband, police personnel caught hold her on the way and demanded money and when she denied to pay the money, police personnel falsely implicated her in this case.
14. On the basis of the evidence adduced by the prosecution, the learned Additional Session Judge convicted the appellant under section 20(B)(ii)(C) N.D.P.S., Act and sentenced her for the rigorous imprisonment of 10 years with the fine of Rs. 1,00,000/- by the impugned judgment and order dated 29.03.2017.
15. On being aggrieved by this impugned judgment and order she preferred the appeal on the ground that the impugned judgment is against the fact and law, misconceived and malafied and it is passed by the Court without applying its judicial mind. Provisions of the N.D.P.S., Act are not complied with. There is no public witness and impugned judgment is liable to be dismissed.
16. Heard Miss. Alpana Dwivedi, learned amicus curiae for the appellant and Shri Vijay Bahadur Yadav, learned A.G.A., assisted by brief holders Shri Rajeev Kumar Rai and Shri Avaneesh Kumar Shukla and perused the record.
17. Learned amicus curiae argued that as per prosecution accused- Devi Sara Punmagar is apprehended by the police at 17:30 O' clock on 28.09.2012 and F.I.R., was lodged on 28.09.2012 at 19:50 pm i.e 2 hours and 20 minutes after her arrest whereas the police station is only 6km away from the spot. Thus, the FIR is delayed and no explanation of the delay is shown in the FIR. I do not agree with this argument of learned amicus curiae because after the arrest of the accused it takes some time in carrying out the search of the accused and in the preparation of the recovery memo sample is taken out rest recovered article are sealed seperately, specimen seal is prepared. After completing all these formalities if within 2 hours and 20 minutes FIR is lodged then it cannot be said that there is delay in lodging the FIR, rather it is a prompt FIR.
18. Learned amicus curiae argued that as per prosecution charas is recovered from the accused on 28.09.2012 at 17:30 pm and the sample is taken away on the spot but this sample is send to the forensic lab for testing on 12.10.2012 this delay in sending the sample creates the prosecution version doubtful. I disagree with this argument of learned amicus curiae because if there is no irregularity in taking the sample and in sending to the forensic lab then on this ground the prosecution case cannot be treated as doubtful that the sample is send to forensic lab after 14 days of occurrence.
19. Learned amicus curiae submitted that the PW1 in his statement has said that accused did not try to run away whereas PW2 in his statement has stated that when the police tried to check the accused, she tried to run away swiftly. This contradiction creates the statement of the witnesses doubtful. In my opinion, this argument of learned amicus curiae is not tenable because it is the minor contradiction and which does not effect the merit of the case. The minor contradiction in the statement of the witnesses are natural Hon'ble Supreme Court in Sohrab and others vs. State of Madhya Pradesh Cri.LG 1972 page 1302 (V78C335) has held that the discrepancies and contradiction in the evidence of witnesses not a sufficient ground to discarded entire evidence of prosecution. Hardly one come across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration.
20. Learned amicus curiae submitted that PW3 has admitted, that in the case registering G.D., presence of lady constable is not mentioned it shows that the lady constable were not present on the spot of arrest. This argument of learned amicus curiae has carries no weight because in the G.D., the name of the all police personnel bringing the accused to the police station are not mentioned. Secondly, it is also not necessary that all the members of Police party will come back to police station with the accused apprehended.
21. The next argument advanced by the learned amicus curiae is that the PW5 Investigating Officer in his statement has admitted that he does not remember that whether any lady constable was present or not at that time when he recorded the statement of Devi Sara Punmagar. This argument of amicus curiae carry no weight because when the Investigating Officer records the statement of any lady accused under section 161 Cr.P.C., then the presence of lady constables is not required.
22. Learned amicus curiae submitted that PW1 has admitted that the information of the arrest of the accused was send to senior officers but the memo of information is not on the file, thus the section 42 of the N.D.P.S., Act is not complied with. I disagree with this argument of the learned amicus curiae because in the present case accused is apprehended at the open place. Section 42 N.D.P.S., Act applies where the search of any building, conveyance or in a closed place is to be carried out. In these case no search of any building, conveyance as closed place is carried out. Accused is apprehended at open place. In Sayar Puri vs. State of Rajasthan 1998 Criminal Law General 4589 Court has held that when accused was found sitting on public road provision under section 42 is not required to be follow.
23. Learned amicus curiae advance her next argument that as per prosecution 7 pieces of charas were recovered from the accused-appellant and from each packet 20 gram charas was taken out for sample, thus 140 gram charas was taken as sample but when the sample was send to the forensic lab for testing and was weighed-in in forensic lab, its weighed was found 151.5 gram. This shows that the sample which was taken on the spot was not send to the forensic lab for testing. I disagree with this argument of learned amicus curiae because when substance is weighed-in by two different weighing machine then there may be some differences in the figure of the weighed. In State vs. Dilbag 2006 (2) EFRS it is held that minor differences in the figure of weighed, weighed on the spot and weighed-in FSL would not vitiate the trial.
24. Learned amicus curiae submitted that in the forensic lab report it is not mentioned that what percentage of the charas was found in the sample of the contraband substance. Learned amicus curiae placed reliance on the ruling of Hon'ble Supreme Court E. Michael Raj Vs. Intelligence Officer Narcotics Control Bureau 2008 (61) ACC Page 660 which is decided on 11th March 2008. On this point here it is worth mentioned that the E. Michal Raj does not apply on the Charas. Secondly, the effect of E. Michal Raj was overrided by notification No. S.O. 2941 (E) dated 18.11.2009, amending Notification No. S.O. 1055 (E) dated 19.10.2001 and these notifications are challenged before the Hon'ble Apex Court in CRIMINAL APPEAL NO. 722 OF 2017 (Arising out of SLP (Crl.) NO. 6092 OF 2014) WITH Criminal Appeal No. 721 of 2017 (@ of SLP (Crl.) No. 8674 of 2014) Civil Appeal No. 5218 of 2017 (@ of SLP (C) No. 21465 of 2014) W.P. (Crl.) Nos. 77 and 154 of 2016 AND W.P. (Crl.) No. 186 of 2014 in which no interim order have been passed and matter was referred to the Larger Bench vide order dated 03.07.2017.
25. Learned amicus curiae submitted that the police party got the prior information of this fact that one woman is carrying the charas and the public persons were also present on the place of occurrence. PW2 in his statement has also said that public persons were present on the spot. PW5 Investigating Officer has also stated that the place of occurrence is adjacent to the locality of burni town even then the police has not made any person as the witness. In my opinion this argument is not going to be benefited to the accused because in the recovery memo itself it is mentioned that the public persons were present on the spot at the time of occurrence but when they were asked to become the witness then they dispersed. It shows that the efforts was made by the police to secure the public witness in Hon'ble Allahabad High Court in Ekram Waris vs. State of U.P., 2005 All LJ 1799 has held that "the evidence of such departmental or police witnesses has been doubted by the Courts only in the cases when in one or the given situation/circumstance, their conduct is found to be unnatural or otherwise suspicious while making recovery and doing the formalities, as required under law." and in Hon'ble Supreme Court in Karamjit Singh v. State (Delhi Admn.), (2003) 5 SCC 291 has held that "The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds." and in Hon'ble Supreme Court in Akmal Ahmad v. State of Delhi, (1999) 3 SCC 337 has held that "It is now well settled that the evidence of search or seizure made by the police will not become vitiated solely for the reason that the evidence is not supported by any independent witness." and in Hon'ble Supreme Court in Jarnail Singh v. State of Punjab, (2011) 3 SCC 521 has held that "Merely because the prosecution has not examined any independent witness, would not necessarily lead to the conclusion that the appellant has been falsely implicated and in Hon'ble Supreme Court in Ajmer Singh v. State of Haryana, (2010) 3 SCC 746 has held that "The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence." and in Hon'ble Allahabad High Court in Rati Ram v. State of U.P., 2013 SCC OnLine All 13007 has held that "The testimony of police personnel cannot be rejected merely because they belong to Police Department. Their testimony should be treated in the same manner as testimony of any other witness. There is no principle of law that without corroboration by independent witnesses, the testimony of a police personnel cannot be relied on. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good reasons. " and in Hon'ble Supreme Court in C. Ronald v. UT, Andaman & Nicobar Islands, (2011) 12 SCC 428 has held that "There is no principle of law that a statement made in court by a police personnel has to be disbelieved. It may or may not be believed. It is not that all policemen will tell lies. There are good and bad people in all walks of life. There are good and bad policemen as well. We cannot assume that every statement of a policeman is necessarily false." and in Hon'ble Supreme Court in Abdul Masjid Abdul Hak Ansari v. State Of Gujarat, (2003) 10 SCC 198 has held that "where prosecution has proved beyond reasonable doubt that the charas was seized from the person of the appellant and the same was properly sent to the Forensic Science Laboratory for the purpose of analysis and the same was found to be a contraband article, sale of which is prohibited under the provision of the Act and the appellant was found possessing the said quantity of charas for the purpose of sale then conviction can be based on evidence of police witnesses." and in Hon'ble Supreme Court in Girja Prasad v. State Of Madhya Pradesh (2007) 7 SCC 625 has held that "The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor."
26. The next argument advanced by learned amicus curiae is that the police party did not complied with these section 50(1) of the N.D.P.S., Act and accused was not informed about her right to get herself searched before any Gazetted Officer / Magistrate. In this regard learned amicus curiae placed the reliance of State of Punjab vs. Baldev Singh SCC 172, Vijay Singh Chandaba Jadeja vs. State of Surat 2011 and K. Mohan vs. State of Kerla. The argument of the learned amicus curiae that the provisions of Section 50(1) is not complied with is not tenable because in the recovery memo it is specifically mentioned that the accused was told before search that your search will be carried out by any Gazetted Officer and Gazetted Officer will be called. No doubt, in the recovery memo it is not mentioned specifically that the accused was told that it is her right to get herself searched before the Magistrate or the Gazetted Officer but this fact is clarified by the witnesses PW1 and PW2. PW1 has stated that the accused was informed about her right that your search will be carried out before a Magistrate or Gazetted Officer on it the accused-appellant told that she has full faith in you people (police party). PW2 who is the complainant of this case has stated in his statement that when the accused told that she is having 2½ kg charas in her petticoat then he informed her (accused) that it is your right that you can get yourself search by any Gazetted Officer or Magistrate then she told that you people take her search. Thus, from the evidence available on the record. It is ample clear that the accused was informed by the police party about her this right that it is her right to get herself search before any Gazetted Officer or Magistrate. In this way the police party complied with the section 50 (1) of the N.D.P.S., Act.
27. In this case the most relevant fact is that the accused is a women and there was a prior information to the police that a women is carrying the charas from Nepal, hence 3 lady constables K. Devi, Mamta Madhuri and Vijay Yadav were also included in the police party. Accused-appellant Smt. Devi Sara Punmagar was apprehended by the police just 10 to 15 steps in side of Indian Territory from the border and then she was taken to Mahila Post and in the Mahila Post this search of accused Devi Sara Punmagar was carried out by the lady constables and the charas was recovered from the petticoat of the accused. Obviously, the search was carried out in Mahila Post Peellar in privacy by the lady constables but none of the 3 lady constables is examined in this case who were the actual witnesses of the recovery. Thus, in my opinion the recovery of the charas from the accused is not proved by prosecution which creates the whole prosecution case doubtful and on this basis accused-appellant is entitle for the benefit of doubt and the judgment and order dated 29.03.2017 is liable to be set aside and appeal deserves to be allowed.
28. Appeal is allowed.
29. Judgement and order dated 29.03.2017 passed by Additional Session Judge / Special Judge (S.C./ S.T. Act) Siddharth Nagar, in Special Case No. 27 of 2012 (State vs. Devi Sara Punmagar) is set aside.
30. Appellant Smt. Devi Sara Punmagar is acquitted from the charge under section 20(B)(ii)(C) N.D.P.S., Act.
31. The case property be destroyed after the expiry of period of appeal, if no appeal is preferred or if the law permits otherwise.
32. Let the lower Court record be send back forthwith along with a copy of the judgement of this appeal for compliance.
33. Learned Amicus Curiae, Ms. Alpana Dwivedi, shall be paid an amount of rupees 10,000/- for assisting this Court in disposing of this appeal.
Order Date :- 30.03.2018 Swati