1.This Jail Appeal is preferred by Kedar Mukhiya, through Jailer, District-Jail, Siddharthnagar, against the judgement and order dated 08.06.2017 passed by Additional District and Session Judge / FTC 2 Siddharth Nagar, in special Case No. 23 of 2011, State of U.P. vs. Kedar Mukhiya, arising out of crime no. 436 of 2011, under section 8/20 N.D.P.S. Act, Police Station- Dumariya Ganj, District- Siddharth Nagar.
2.Vide this impugned judgement and order dated 08.06.2017, accused-appellant Kedar Mukhiya is convicted under section 20 (b) (ii) (c) N.D.P.S. Act and is punished with the sentence of the rigorous imprisonment for 10 years and a fine of Rs. 1,00,000/- in default of payment of fine, he will undergo the additional simple imprisonment for 6 months.
3.This appeal is preferred on the grounds that the impugned judgement and order dated 08.06.2017 is passed against the fact and law, it is misconceived and malafide. Learned lower Court has passed this judgement without applying his judicial mind. The provisions of section 50, 52, 57 and 42 of the N.D.P.S., Act have not been complied with. Copy of the recovery memo was not given to the accused-appellant. In the recovery memo it is mentioned that the alleged recovered Charas is weighed-in by the balance and the figure of the weight is as such which can be delivered only through the electronic weighing scale, FIR is after-thought and is lodged after undue delay. There is no public witness of the occurrence and there is major contradictions in the statement of the witnesses. Applicant is falsely implicated in this case, therefore, the impugned judgement dated 06.08.2017, passed by the lower Court is liable to be set aside and the accused-appellant is entitled for acquital from the charge framed under section 20 (b) (II) (c) N.D.P.S. Act.
4.In the nutshell the prosecutions case is that on 07.06.2011 at 19:50 O'clock, complainant S.O. Pankaj Kumar along with other police personnel was patrolling in town Dumariyaganj. He got the information from the informer that a gang which is involved in selling of the contraband intoxicant substance and some ladies are also its member, is trying to reach Lucknow from Nepal via Krishna Nagar Burni Border, Dumariya Ganj Vewa crossing taking heavy quantity of Charas with them. Believing on this information, complainant informed about it through phone to C.O. Dumariya Ganj Sri Virendra Kumar Yadav and S.D.M., Dumariya Ganj Sri Jalrajan Chaudhary. Complainant also asked the Station Officer of Mahila Police station to provide lady constables after that complainant came back to police station and made the entry of his departure from police station in G.D. No. 36 at 21:20 O'clock, then complainant along with S.I. Brijesh Kumar Singh, constable Ashtbhuja Tiwari, constable Triveni Yadav and lady constable Vidya Singh reached at Vewa Tiraha along with informer. They hide their government jeep in the side of Petrol pump. Constable Amarnath and constable Satya Narayan Yadav also reached there and complainant took them also with him. At about 22:30 p.m. a roadways bus reached there from the side of Dumariya Ganj and it stopped at crossing then one man and 3 ladies having bag in their hands alighted from the bus. Informer pointed out towards them then the police party tried to stopped them. Seeing the police personnel they tried to run away but the police party apprehended them. Their name were asked. They told their name Kedar Mukhiya, Smt. Kusum Devi, Kumari Savita and Smt. Madhuri Devi. When they were put to this question that what is there in bags holding in their hands then all the four persons told that they have Charas in their bags then police party told them that it is their right that they can get themself searched in presence of Gazetted Officer / Magistrate. Then all the four persons said that when you people have apprehended us then you take their search.
5.At this stage all the police personnel took the search of each other first to ensure that none of the police personnel has any objectionable substance and article with him. Then they took the search of Kedar Mukhiya and in the search of Kedar Mukhiya, 20 pieces of black colour solid substance in the shape of rectangular were recovered from the bag, white in colour which Kedar Mukhiya was holding in his right hand. On seeing and smelling it was appearing to be Charas which was rapped in a transparent polythene. Other 3 ladies were also searched by lady constable Vidya Singh and contraband article were also recovered from them. Constable Asht Bhuja Tiwari was sent to take the electronic weighing seale. The contraband article recovered from Kedar Mukhiya was weigh-in and it was found that it is having the weigh of 5.070 Kg. From each of the 20 pieces recovered from Kedar Mukhiya, some small quantity was taken away and thus total 100 gram substance was taken for sample and it was sealed in the white cloth. Specimen seal was also prepared. During search of Kedar Mukhiya besides above mentioned recovered charas, one Indian note of the denomination of Rs. 1,000/- and one Indian note of denomination of Rs. 500/- and two Nepali currency note of Rs. 100 each were also recovered from purse kept in right packet of his pant which he was wearing at the time of arrest. So many persons of the public gathered there but when they were asked to become witness, they denied to become the witness of the occurrence.
6.On the basis of above recovery memo the FIR was lodged at the police station Dumariya Ganj, District- Siddharth Nagar and the case was registered. The investigation was handed over to S.O. Dadan Singh and the recovered sample was sent to forensic lab, Lucknow, for testing. Investigating Officer prepared the site plan and recorded the statements of witnesses and in the chemical examination report the recovered substance was found Charas. Investigating Officer after concluding the investigation submitted the charge-sheet no. 39 of 2011 dated 30.06.2011, in crime no. 436 of 2011 under section 8/20 N.D.P.S. Act, Police Station- Dumariyaganj, against accused-appellant Kedar Mukhiya.
7.The charge under section 20 (b) (II) (c) N.D.P.S. Act, was framed against the accused-appellant Kedar Mukhiya which was read over and made understood to him. The accused-appellant denied the charge and demanded for the trial.
8.Prosecution examined 7 witnesses PW1- SI Pankaj Kumar Gupta, PW2- Ram Ji Yadav, ACP, PW3- S.I Dadan Singh, PW4- S.I Brijesh Kumar Singh, PW5- HCP Mukhtar Ahmed, PW6- HCP Vidha Singh and PW7- HCP Jaimangal Singh out which PW1- S.I Pankaj Kumar Gupta, PW2 Ramji Yadav, PW4 Brijesh Kumar Singh and PW6 HCP Vidha Singh are the witnesses of the fact and they have supported the version of prosecution, PW3 S.I. Dadan Singh is the Investigating Officer and PW5 has taken the sample of this Crime No. 406 of 2011 on 15.06.2011 to the forensic lab for testing and PW7 has written the chik FIR and the G.D. of registering the case.
9.After the evidence of the prosecution the statement of the accused- appellant under section 313 Cr.P.C., was recorded. He denied the prosecution case and submitted that nothing is recovered from him. He is falsely implicated in this case. No information is given to the senior officers about this alleged recovery. Police has obtained his thumb impression on blank sheet. He was not informed about the cause of his arrest he was also not informed about his right. He works as labourer at the brickkiln when he was going to brickkiln from his house by bus during the checking in the bus he was caught hold because he was not having the I.D. proof.
10.Accused-appellant examined DW1 Chandrawati in his defence. DW1 Chandrawati has stated that on 07.06.2011 she was going from Barhni Town to Dumariya Ganj by bus when the bus reached at Dumariya Ganj town some police personnel checked the bus and they apprehended those persons who were not having the I.D. proof.
11.On the basis of the above evidence the Additional District and Session Judge / FTC 2 Siddharth Nagar, passed the judgement and order dated 08.06.2011 in special Criminal Case No. 23 of 2011 convicting Kedar Mukhiya, under section 20 (b) (II) (c) N.D.P.S., Act and sentencing him with the rigorous imprisonment of 10 years with fine of Rs. 1,00,000/- and in default of payment of fine, applicant Kedar Mukhiya was to suffer the Additional imprisonment of 6 months.
12.Being aggrieved by this impugned judgement and order dated 08.06.2017 the present appeal is preferred.
13.Heard learned amicus curiae, Ms. Abida Syeed and learned A.G.A., Sri Vijai Bahadur Yadav, assisted by Sri Rajiv Rai, brief holder.
14.Learned amicus curiae argued that in the recovery memo it is mentioned that 100 gram substance was taken away as sample from the contraband substance recovered from Kedar Mukhiya but the Forensic lab report shows that when the sample is weighed-in in the lab it is found 102 gram. This discrepancy in weight shows that the sample which was taken on the spot was not send to the forensic science lab for testing but some other sample or substance was sent to forensic science lab. I do not agree with this argument of the learned amicus curiae because this argument has no force because difference of 2 gram may occur due to the weighed-in of the substance by 2 different weighing scales and such a minor different may also occure even with the gust of wind or by the pressure of wind of ceiling fan. It has been held in State Vs. Dilbagh 2006 (2) E.F.R. 5 that sample which was extracted was sent to chemical analyzer and minor differences in the weight would not vitiate the trial.
15.The further argument of learned amicus curiae is that as per prosecution case 20 rectangle piece of charas was recovered from the possession of accused-appellant, Kedar Mukhiya and in the recovery memo it is mentioned that some quantity was taken away from all 20 pieces for sample and thus as a whole 100 gram substance was taken away from all 20 pieces of charas recovered from the Kedar Mukhiya. But in the recovery memo it is not specifically mentioned that how much quantity was taken away from each piece for sample. This fact creates the prosecution case doubtful. In my opinion this argument of learned amicus curiae does not carry much weight because it is not possible to give such a minor detail in the recovery memo that from which piece how much gram sample is taken away. If it is mentioned that from all pieces collectively 100 gram sample is taken away, it is sufficient.
16.The learned amicus curiae submitted that there is contradiction in respect of the use of the balance for weighing-in the alleged recovered charas from the accused-appellant Kedar Mukhiya because in the recovery memo it is mentioned that the recovered charas was weighed-in by the electronic weighing scale whereas PW2 Ram Ji Yadav in his statement has stated that the charas recovered from accused was weighed-in by S.O., by the balance and weighed which was brought by constable Ashtabhuja Tiwari from Vewa crossing from the shop of some shop keeper. Constable Ashtbhuja Tiwari brought the balance and weights which were of 1 kg, 2 kg, 500 gram, 200 gram, 100 gram and 50 gram. This contradiction makes the prosecution case doubtful and it also creates doubt on the version of recovery memo that charas recovered from the Kedar Mukhiya was weighed-in by the electronic weighing scale.
17.In my opinion this contradiction is not much important on two grounds. Firstly PW-2 Ram Ji Yadav in his statement has stated that this occurrence took place very long back and with the span of time it is possible that the witness would have confused or forgotten some facts. Here it is important that the version of the recovery memo that the recovered contraband article from the accused was weighed-in by electronic weighing scale is supported by other evidences. As the PW-1 Pankaj Kumar in his statement has stated that the charas recovered from Kedar Mukhiya was weighed-in by the electronic weighing scale and the charas recovered from Kedar Mukhiya was found 5.070 kg. PW4 S.I. Brijesh Kumar Singh, has also stated in his statement that the charas recovered from the Kedar Mukhiya was weighed-in by electronic weighing scale. Thus, the statement of PW1 and PW4 supports the version of recovery memo that the charas recovered from the Kedar Mukhiya was weighed-in by the electronic weighing scale. In this regard the contradiction in the statement of PW2 is not material. It is also note worthy that in grounds of appeal. Appellant has himself admitted that the figure of alleged recovered charas is as such which can be delivered only by the electronic weighing scale.
18.In the grounds of appeal. Appellant has mentioned that in the recovery memo it is mentioned that alleged recovered charas was weighed-in by balance and weight. This contention of appellant is against the fact. It is not written in recovery memo that alleged recovered charas was weighed-in by balance and weight but in the recovery memo it is written that recovered charas was weighed by electronic weighing scale.
19.Further, argument advanced by the learned amicus curiae is that the PW1 S.I. Pankaj Kumar Gupta in his statement has said that on the information of the informer police party went to the spot and on the pointing of informer, police party apprehended the accused whereas PW-2 Ram Ji Yadav A.C.P., in his statement has stated that the accuseds were apprehended by the police on the basis of doubt. This contradictions in the statement of witnesses creates doubt on the prosecution version. But I do not agree with this argument of the learned amicus curiae because in the recovery memo it is very much clear that on the information of informer, police party visited on the spot and apprehended the accused-appellant. Beside the recovery memo PW1 Pankaj Kumar Gupta and PW4 S.I. Brijesh Kumar Singh has also stated in their statement that the informer gave the information to S.O. then S.O. along with other police personnel went to the place of occurrence and the accused were arrested on the pointing of the informer. PW-6 lady constable Vidya Singh has also stated that the police party visited on the spot with the informant. These all evidences shows that the prosecution has successfully established that on the information of the informer police party visited on the spot and on the pointing of informer Kedar Mukhiya was apprehended. The omission in the statement of PW-2 in this regard that the police party acted upon the information of the informer and caught hold the accused on the basis of suspecion is also not important on this ground that the information is given by the informer to S.O. PW1 Pankaj Kumar Gupta, not to P.W.2 Ram Ji Yadav and it very much possible that this fact was not in the knowledge of all the members of the police party.
20.It was further argued by the learned amicus curiae is that the PW1 in his statement has said that five copies of recovery memo were prepared whereas PW4 has stated that the 3 copies of recovery memo were prepared. In my opinion it is not material contradiction and this contradiction does not give any benefit to the accused-appellant.
21.Further, learned amicus curiae argued that the PW1 S.I. Pankaj Kumar Gupta in his statement has stated on page 11 that the plastic bag in which 20 pieces of charas were recovered from accused Kedar on that plastic bag, no crime number, is mentioned and it also does not bear the thumb impression or signature of accused, signature of any police personnel's and the name of accused is also not mentioned on it. Under such circumstances it can not said that the case property produced before the Court was the same contraband charas which was recovered from the possession of the Kedar Mukhiya on the spot as per prosecution case.
22.But I do not agree with this argument of learned amicus curiae because in the recovery memo it is very much clear that the charas is recovered from Kedar Mukhiya, Kusum Devi, Kumari Savita, Madhuri Devi. All the four accuseds were having the bag in their hands and from those bags these charas was recovered respectively and the charas recovered from all the four accused was sealed in white clothes. This fact is further clarified by the PW-1 in his statement that the case property recovered from all the four accused was produced in the Court in a sack which was sealed and when seal of sack was opened in the Trial Court then four packets were found in it and in each packet the charas recovered from an accused along with bag in which it was recovered was kept separately. Thus, it is clear that the police kept recovered charas in the same bag from which it was recovered from Kedar Mukhiya, and this bag was sealed in white cloth in the form of packet and in the same way four packets of recovered charas from all the four accused were prepared separately and they were kept in sack. Under such circumstances if the crime no. and the name of accused is not mentioned on the bag or there is no signature or thumb impression on the bag is not relevant because on the packet in which this bag is sealed, the crime no. 436 of 2011 vs. Kedar Mukhiya, police station- Dumariya Ganj is specifically mentioned as PW-1 Pankaj Kumar has stated in his statement on page 7. Thus, prosecution has established that the packet which contains 20 pieces of charas which was produced before the Trial Court is the same packet in which 20 pieces of charas measuring the 5.070 was recovered from Kedar Mukhiya were kept and sealed on the spot.
23.It is also submitted by learned amicus curiae that there is no public witness of this occurrence. In my opinion this argument of the learned amicus curiae is not going to benefit the accused-appellant because in the recovery memo it is specifically mentioned that at the place of occurrence, some public personnel gathered but when they were asked to become the witness of the occurrence then they went away. It shows that in spite of the due efforts the public witnesses could not procured in this case. It is pertinent to note that the testimonies of the prosecution witnesses cannot be discarded solely on the ground that the said witnesses are police witnesses. As held by the Hon'ble Allahabad High Court in Rati Ram and others Vs. State of U.P., 2013 (81) ACC 550 that the statement of a police officer can be relied upon and even form the basis of conviction when the same is reliable and trustworthy and preferably corroborated by other evidence on record. Hon'ble Supreme Court in Abdul Mazid, Abdul Haq Ansari Vs. State of Gujrat (2003) 10 SCC 198 has held that where the prosecution case is based on evidence of police witnesses only. Accused can be convicted if the case is found proved beyond reasonable doubt.
24.Learned amicus curiae argued that section 50(1) is not complied with in this case. I do not agree with this argument of learned amicus curiae on two grounds. Firstly, the provisions of section 50 of the N.D.P.S. Act are applicable when the bodily search of the accused is carried out. When the person of the accused is searched, then the procedural safeguards of Section 50 of the N.D.P.S. Act are in full swing and no deviation from the same is permitted. However in case of search of the bag of the accused or anything carried by him in his hand, then in such cases provisions of section 50 of the NDPS Act are inapplicable. As held by the Hon'ble Supreme Court in Jarnail Singh Vs. State of Punjab, 2011 CrLJ 1738(SC) and State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172. In this present case the charas was recovered from the bag of the accused Kedar Mukhiya which he was carrying in his hand. Secondly, in this case police party have fully complied with the provisions of Section 50(1) of the NDPS Act because it is specifically mentioned in the recovery memo that before the search, accused Kedar Mukhiya and other co-accused were informed about their right that it is their right that they can get themself searched before any Gazetted Officer / Magistrate. On it appellant and other co-accused gave their concern to police party to get themselves searched by the police personnel's for the compliance of Section 50(1) of the NDPS Act. The suspected person must be informed about his right that it his right to get himself searched before any Gazetten Officer / Magistrate and even after it the suspected person gives his consent to get himself searched by the police party then it will be the sufficient compliance of Section 50(1) of the NDPS Act. As Hon'ble Supreme Court in State of Punjab Vs. Baldev Singh (1996) 6 SCC 172 and Vijay Singh Chandu Bha Jadeja Vs. State of Gujrat (2011) 1 SCC 609 has held. Thus, this Court of view that the police party had made the full compliance of Section 50(1) of the NDPS Act.
25.Learned amicus curiae submitted that the compliance of Section 42, 52 and 57 are not made in this case. In regard to Section 42 learned amicus curiae submitted that in the present case the search, seizure and arrest is not made by the empowered persons. The Court does not agree with this argument of learned amicus curiae because in the present case the search, seizure and arrest is made by the Station Officer / Sub Inspector of Police Pankaj Kumar Sub-inspector of Police is the empowered person for search, seizure and arrest as per the provisions of Section 42 of the NDPS Act. In regard to Section 52 learned amicus curiae submitted that the accused-appellant was not informed about the ground of his arrest. I disagree with this argument of learned amicus curiae also because in the recovery memo itself it is mentioned that the accused were informed about the reason of their arrest. Thus, the police party complied with the provisions of Section 52 of the NDPS Act. In regard to Section 57 of the NDPS Act, learned amicus curiae submitted that as per section 57 of the NDPS Act within 48 hours of the arrest of accused its information should be given to the Higher Officers with particulars of arrest and seizure. This argument of learned amicus curiae has no force because PW1 S.I. Pankaj Kumar Gupta who is the complainant of this case has stated in his statement that the information regarding the arrest and recovery from the accused was sent to the Higher Authorities. Thus, the compliance of Section 57 of the NDPS Act was also carried out.
26.In the grounds of appeal, it is submitted that the copy of recovery memo is not given to the accused-appellant. This ground of appeal is against the fact. In recovery memo it is specifically mentioned that copy of recovery memo were given to accuseds and all the accuseds including appellant Kedar Mukhiya has put his signature beneath it.
27.In the ground of appeal it is also mentioned that the FIR is delayed. This ground of appeal is also against the fact because in this case accused-appellant is apprehended with other co-accused at 23:40 O'clock on 07.06.2011 and FIR is lodged on 2:10 a.m. on 08.06.2011 i.e. FIR is lodged only within 2:30 hours of the arrest of accused and the Police Station is 8 k.m. away from the place of occurrence. Thus, it can not be said that FIR is delayed.
28.So far the evidence produced by DW-1 Chandrawati Devi is concerned no where in her statement, she has said that she is familiar with Kedar Mukhiya or the Kedar Mukhiya was arrested by police in her presence while decending from the bus.
29.Thus, the PW-1 Pankaj Kumar Gupta, PW2 Ram Ji Yadav A.C.P., PW-4 S.I. Brijesh Kumar Singh and PW-6 H.C.P. Vidha Singh has proved this fact that on 07.06.2011 at 23:40 O'clock near Beva petrol pump within the police station, Dumariya Ganj, District- Siddharth Nagar, Kedar Mukhiya was caught hold by police party and 5.070 Kg charas was recovered from his possession. PW-3 S.I. Dadan Singh has proved the investigation and PW-5 H.C.P. Mukhtar Ahmed has proved this fact that he took the case property of crime no. 436 of 2011 on 15.06.2011, to the forensic lab for tesing. PW-7 H.C.P. Jaimangal Singh has proved the FIR and G.D. Entry of case registering G.D. Forensic lab report also supports the version of the prosecution that the case property of crime no. 436 of 2011 was found charas.
30.On the basis of above discussion I come to this conclusion that the prosecution has succeeded in proving his case and there is no illegality or irregularity in the impugned judgement. Hence, I am not inclined to interfere with the Judgement and order dated 08.06.2017 passed by Additional Session Judge / F.T.C. No. 2 Siddharth Nagar, in Special Criminal Case No. 23 of 2011, State of U.P. vs. Kedar Mukhiya.
31.On the basis of above discussion I come to this conclusion that the appeal is liable to be dismissed.
32.Appeal is dismissed.
33.The accused-appellant is already in jail.
34.The case property be destroyed after the expiry of period of appeal, if no appeal is preferred or if the law permits otherwise.
35.Let the lower Court record be send back forthwith along with a copy of the judgement of this appeal for compliance.
36.Learned Amicus Curiae, Ms. Dr. Abida Syeed, shall be paid an amount of rupees 10,000/- for assisting this Court in disposing of this appeal.
Order Date :- 23.02.2018 Swati