Judgment Reserved on 15.4.2019 Judgment Delivered on 26.4.2019
Court No. - 77
Case :- CRIMINAL APPEAL No. - 1668 of 2007 Appellant :- Ram Vinay Prasad Yadav Respondent :- State Of U.P. And Another Counsel for Appellant :- Vinay Saran,Balwant Singh,Bhart Singh Counsel for Respondent :- Govt. Advocate,Krishna Agarawal,Sanjay Kumar Singh with Case :- CRIMINAL APPEAL No. - 1765 of 2007 Appellant :- Virendra Sahani Respondent :- Union Of India Counsel for Appellant :- Akash Deep Srivastava,A N Tewari,Sikandar Bharat Kochar Counsel for Respondent :- Sanjay Kumar Singh,A.G.A.,Krishna Agarawal
Hon'ble Aniruddha Singh,J.
1. These Criminal Appeals have arisen out of same judgment and order, hence both were heard together and are being decided by common judgment.
2. Both the criminal appeals have been filed by appellants Ram Vinay Prasad Yadav and Virendra Sahani against judgment and order dated 22.1.2007 passed by Additional District & Sessions Judge/F.T.C., Court No. 3, Gorakhpur in Special Sessions Trial No. 09 of 2005, Police Station D.R.I., District Gorakhpur whereby appellants Ram Vinay Prasad Yadav and Virendra Sahani were convicted under Sections 8/20 & 8/23 N.D.P.S. Act and sentenced to ten years' rigorous imprisonment with fine of rupees one lac each, in default of payment six months additional imprisonment under Section 8/20 N.D.P.S. Act; ten year's rigorous imprisonment with fine of rupees one lac each, in default of payment six months additional imprisonment under Section 8/23 N.D.P.S. Act. All the sentences to run concurrently. Recovered article (charas) was destroyed after expiry of limitation period in filing the appeal. A copy of said order was sent to District Magistrate, Gorakhpur for confiscation of truck bearing no. HR-55B/4023.
3. According to prosecution case, complaint was filed on 1.2.2005 and information received on 10.10.2004 at 13 hours from Additional Director, Directorate of Revenue Intelligent, Patna alleging that a truck bearing no. H.R. 55- B/4023 was being driven by Virendra Sahani and one person sitting beside the driver namely, Ram Vinay Prasad Yadav were arrested by Information Officers of Directorate in presence of Sri Rajeev Mishra and Manoj Kumar (independent witnesses) and 49 Kgs. Charas was recovered which was sent for chemical examination. Report was received wherein recovered article was found Charas. Complaint was filed & cognizance was taken by the court concerned.
4. Charges were framed under Sections 20(B)(11) & 23 of N.D.P.S. Act, 1985 against them. They pleaded not guilty and claimed for trial.
5. In order to prove its case, prosecution examined three witnesses in all i.e. P.W. 1 Pankaj Mishra ((information Officer), P.W.2 Lal Babu Prasad (information officer) & P.W.3 A.K. Chaturvedi (Senior Information Officer).
6. After closure of the prosecution evidence, statements of the accused/appellants under Section 313 Cr.P.C. were recorded. They specifically stated that they were innocent and have not committed the present offence.
7. After hearing learned counsel for parties, the impugned judgment and order was passed. Hence this appeal.
8. Heard Pradeep Kumar Mishra, Advocate holding brief of Sri Vinay Saran and Sri Manoj Tripathi, Advocate holding brief of Sri Sikandar Bharat Kochar, learned counsel for the appellants, Sri Krishna Agarawal, Advocate appearing on behalf of Union of India and Sri P.K. Srivastava, learned A.G.A. for the State.
9. Learned counsel for appellants submitted that Provision of Section 42 of N.D.P.S. Act has not been complied with, hence appellants are liable to be acquitted.
10. From the perusal of record, it transpires that this issue was also raised before trial court and it was found that statements of accused-appellants were recorded under Section 67 of N.D.P.S. Act and it was shown that opportunity was given to the appellants, hence provision of Section 42 of N.D.P.S. Act was fulfilled.
11. Learned counsel for appellants further submitted that there are major contradictions between the statements of witnesses but this Court found that it was proved beyond reasonable doubt that 49 Kgs. Charas was recovered from said truck, when both appellants were setting in said truck; one was driver and another was sitting beside the driver.
12. Another argument raised by learned counsel for appellants is that so-called recovered material was not sent for chemical examination.
13. From the perusal of record, it shows that it is clearly proved beyond reasonable doubt that recovered article was sent for chemical examination and report was obtained mentioning therein that recovered article was found Charas. Act was done by Director and Officials concerned in order to discharge their officials duties. Hence presumption will lie in favour of Director etc. until and unless otherwise proved. There is no evidence against Director and Expert, hence this fact deemed to be proved beyond reasonable doubt.
14. Next argument raised by learned counsel for the appellants is that recovery was not prepared according to rules/law but this Court finds that there is no force in the argument on this point raised by the learned counsel for the appellants.
15. It is pertinent to mention here that according to Section 67 of N.D.P.S. Act, statements of both appellants were recorded and they have given statements voluntarily, that is admissible in evidence. Argument raised by learned counsel for the appellants has no force.
16. Quantity of recovered article (charas) was not very less. There was no possibility for complainant to arrange so-called recovered Charas of 49 Kgs. for planting to the appellants. There is no reason of false implication of accused-appellants.
17. All arguments raised by learned counsel for appellants before this Court have already been raised before trial court and detailed discussions have been done, hence there is no need to repeat again the same findings given by trial court. The view taken by the trial court is plausible view, hence no interference is called for in these appeals. Accused-appellants have already been released after serving out their sentences.
18. For the foregoing discussions and in the above backdrop, this Court finds that other arguments and grounds of appeal made by learned counsel for appellants are baseless; the appeals are liable to be dismissed. Hence dismissed.
19. A copy of this judgment be also kept in connected Criminal Appeal No. 1765 of 2007.
20. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned.
Order Date :- 26.4.2019 A. Singh