Uttarakhand High Court
Sirajul Dawan vs State Of Uttarakhand on 11 April, 2013
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Appeal No. 145 of 2010
Sirajul Dawan. .......Appellant.
Versus
State of Uttarakhand. ............. Respondent.
Present
Mr. Manish Arora, Advocate for the appellant.
Mr. Vipul Painuly AGA and Mr. K.S. Rangarh, Brief Holder for the State of Uttarakhand.
With
Criminal Appeal No. 149 of 2010
Jafeer Alam. .......Appellant.
Versus
State of Uttarakhand. ............. Respondent.
Present
Mr. Manish Arora, Advocate for the appellant.
Mr. Vipul Painuly AGA and Mr. K.S. Rangarh, Brief Holder for the State of Uttarakhand.
With
Criminal Jail Appeal No. 17 of 2012
Hira Devi. .......Appellant.
Versus
State of Uttarakhand. ............. Respondent.
Present
Mr. Tapan Singh, Amicus Curiae, for the appellant.
Mr. Vipul Painuly AGA and Mr. K.S. Rangarh, Brief Holder for the State of Uttarakhand.
Hon'ble Alok Singh, J (Oral).
1. Present three appeals are directed against the judgment and order dated 19.06.2010 passed by Special Additional Sessions Judge/ 1st FTC, Roorkee in Special Sessions Trial Nos. 4/2009, 5/2009 and 6/2009 whereby learned trial court held the appellants guilty for the offence punishable under Section 20 of the NDPS Act and sentenced them to undergo 10 years rigorous imprisonment each and to pay fine 2 of Rs. 1,00,000/- each and in default, to undergo one year additional imprisonment.
2. Brief facts of the present case, inter alia, are that Senior Sub Inspector Rajeev Rauthan (PW1) lodged an FIR with police station Gang Nahar, Roorkee, District Haridwar on 11.01.2009 at 04.30 p.m. to the effect that on 11.01.2009, he along with Sub Inspector Dinesh Kumar, Constable Prashant Rana, Constable Parmendra Rana, Constable Gopal Ram & lady Constable Rachna Nirala was on duty to maintain law and order within the area of police station Kotwali Gang Nahar; when police party reached near Ganesh Chowk, one police informer informed the police party that two boys and one female, after alighting from train, are coming towards Railway Station CHUNGI Trijunction (TIRAHA) and they are carrying charas; having received the secret information, police party tried to have public witness, however, none agreed to become an independent witness, thereafter, police party had checked each other and search memo Exhibit A 1 was prepared; thereafter police party proceeded towards Trijunction (TIRAHA); police party parked their Jeep nearby Trijunction (TIRAHA) and all the police personnel started waiting for the appellants; appellants were seen coming on foot from Railway Station side; police informer, after pointing towards the appellants, had left the police party; appellants were then apprehended at 02.00 p.m. and on being asked, all the appellants had disclosed their respective identities; PW1 then asked the appellants that police party have received secret information that they were carrying charas, therefore, if they wish, they could be searched in the presence of Magistrate / Gazetted Officer, on this appellants told PW1 "Sir, since you had apprehended us, therefore, you could search us"; on this 3 consent letters were prepared and signatures of appellants were obtained on the consent letter; appellant Heera Devi was searched by lady Constable Rachna Nirala while appellants Sirajul Dawan and Jafeer Alam were searched by other police personnel; charas, so recovered, from three bags being carried by appellants was weighed and on being weighed, it was found that Sirajul Dawan, Jafeer Alam and Hira Devi were carrying 2.5 kg., 2.5 and 1.5 kg. of charas in their bags respectively; appellants were told that they had committed crime punishable under the provisions of the NDPS Act; from the charas recovered from the respective bags, samples were drawn and thereafter, remaining charas were kept in three different seal covers under the seal and signature of PW1 and samples, so drawn, were also kept in three different packets under the seal and signature of PW1; sample seal was also prepared on the spot; seizure memo and arresting memo was also prepared on the spot and thereafter, appellants and contraband were brought to the police station and check FIR was lodged.
3. Investigation was handed over to SI Govind Kumar PW3; Investigating Officer, having investigated the matter, has submitted three different charge-sheets against each of the appellants for the offence punishable under Section 8/20 NDPS Act. Three trials were commenced, however, all the three trials were consolidated by the trial Judge. Appellants were charged for the offence punishable under Section 8/20 of the NDPS Act. Each of the appellants denied charges and claimed trial.
4. From the side of prosecution, PW1 Sr. Sub Inspector Rajeev Rauthan, PW2 Constable Padmendra, PW3 SI Govind Kumar, PW4 Constable Ashutosh Tiwari, PW5 Sanjay Ram Goswami, PW6 Gopal Ram and PW7 Constable Mahaveer 4 Singh were examined. Statements of appellants were also recorded under Section 313 Cr.P.C.
5. Learned trial court, having perused the material available on record, has passed judgment and order under appeal.
6. I have heard Mr. Manish Arora, Advocate for Sirajul Dawan and Jafeer Alam, Mr. Tapan Singh, Amicus Curiae for Heera Devi and Mr. Vipul Painuly, AGA with Mr. K.S. Rangarh, Brief Holder for the State and have carefully perused the record.
7. As per the FIR and statement of PW1 Sr. Sub Inspector Rajeev Rauthan, when police party was on duty to maintain law and order in the area, police informer informed them that appellants were carrying charas and were coming out from Railway Station towards Ganesh Chowk Trijunction (TIRAHA) on foot; having received the information police party started waiting for the appellants; appellants were seen coming from side of Roorkee Railway Station towards Ganesh Chowk and the moment, they reached near Ganesh Chowk, the police informer had pointed out towards the appellants saying appellants were the persons, who were carrying charas; police apprehended the appellants at Ganesh Chowk, Trijunction (TIRAHA) Railway Road, Roorkee.
8. PW6 Constable Gopal Ram, during his cross examination, has stated as under:
"I was present at the time of arrest of the appellants. We had left the police station after making relevant entries in the GD; I cannot say, at what time, we had left the police station; police 5 personnel had searched each other; such search was not made in the presence of any independent witness; appellants were arrested from Roorkee Railway Station; appellants were arrested at the platform; appellants tried to run away; which of the appellants apprehended first and by whom, I do not remember; I had not apprehended either of the appellants but all the police personnel had collectively apprehended the appellants; appellants were apprehended during day time; at the time of arrest of the appellants, there was heavy movement of the passengers on the platform; passengers were requested to become independent witness, however, none of them agreed; which of the appellants was searched first, I do not remember."
9. Appellant Sirajul Dawan in his statement recorded under Section 313 Cr.P.C. has stated that he had come to Laksar for tailoring work but he has falsely been implicated and he has no concerned with the contraband.
10. Appellant Heera Devi, in her statement recorded under Section 313 Cr.P.C., has stated that she is innocent; she was sitting on Railway Station, Laksar and one bag was lying nearby her, which does not belonging to her; I do not know who is the owner of this bag.
11. In view of the statement of appellants Heera Devi and Sirajul Dawan, they were apprehended by police from Laksar Railway Station, District Haridwar and not from Roorkee. It is a known fact that Laksar Railway Station is 25 km. away from Roorkee Railway Station.
612. To find out the truth, this Court has to test the veracity of statements of PW1 & PW6 as well as statements of appellants recorded under Section 313 Cr.P.C. As observed hereinabove, PW1 states that appellants were apprehended from Ganesh Chowk Trijunction (TIRAHA), Station Road, Roorkee while PW6 states that appellants were arrested from Roorkee Railway Station platform. In view of the contradictory statements of PW1 & PW6, arrest of the appellants becomes highly doubtful.
13. Although PW1, PW2, PW6 have admitted in their respective statements that at the time of arrest of appellants, there was huge crowd, either on the road or on platform, however, police, as usual, had taken a plea that despite their request none of the public members agreed to become an independent witness.
14. In the opinion of this Court, floating statement is not sufficient. Prosecution must prove that who were those public members, who were requested and declined to become independent witness. Not only this, either at the Railway Station, Roorkee or on the road near Ganesh Chowk, there were number of Government offices wherefrom the police could get independent witness viz. GRP officials, Station Master and other officials of Railway Department. Near Ganesh Chowk, there were few Government offices like office of BDO, Cane Development Department and Mandi Samiti, as suggested by Mr. Manish Arora and Mr. Tapan Singh, counsel for the appellants.
15. As per the statement of PW1, having received secret information, all the police personnel have searched each other and thereafter, search memo Exhibit A 1 was prepared, 7 thereafter, police party proceeded towards Ganesh Chowk Trijunction (TIRAHA) and parked the police Jeep near Chungi and started waiting for the appellant.
16. In the firm opinion of this Court, police party must have taken 5-10 minutes in the aforesaid activities. Admittedly, office of Tehsildar, Residence and Office of SDM, Roorkee is within 2 km. from the Ganesh Chowk TIRAHA. PW2 could have called them on phone on the spot through mobile phone.
17. There is nothing on record to explain as to why, Government officials like Railway officials or GRP officials were not requested to become an independent witness at the time of search and arrest of the appellants. Entire exercise is full of suspicion.
18. Although, as per check FIR and as per statement of PW2 Padmendra & PW6 Gopal Ram, appellant Heera Devi was searched by lady Constable Rachna Nirala, however, for the reasons best known to the prosecution, she was not produced in the witness box. Since she was not produced in the witness box, therefore, adverse inference should be drawn against the prosecution to say that appellants were not arrested, in the way and manner, prosecution has suggested, more particularly in view of contradictory statement of PW1 and PW6.
19. Investigating Officer PW3 SI Govind Kumar states that sample was sent for chemical examination on 20.01.2009 while as per statement of Constable Ashutosh Tiwari PW4 entry was made in the GD on 19.01.2009 to the effect that he had left the police station for taking the samples of contraband to FSL, Dehradun for chemical examination; however, PW4, during his cross examination, states that although entries were made in the GD that he had left along with samples on 8 19.01.2009, however, he did not leave the police station on 19.01.2009 and remained in police barrack throughout the night and had left the police station, on next day in the morning at 08.30 a.m. and he had kept the samples of contraband in a box under his lock and key.
20. This is not understandable, if in fact PW4 had left the police on 20.01.2009, why entries were made in the GD that he had left the police station on 19.01.2009. Although PW6 has produced on record, copies of Maalkhana Register (Exhibit A17) to show that contraband, so recovered and sample, so drawn, along with sample seal were kept in the Maalkhana of the police station on 11.01.2009, however, no entry of the Maalkhana register was produced before the court to say as to whether samples were taken out from Maalkhana on 19.01.2009 as stated by Investigating Officer or on 20.01.2009 when PW4 had actually taken it for chemical examination. PW3 Investigating Officer nowhere stated that samples were sent for chemical examination by the order of Superintendent of Police (Rural), Haridwar but Constable Ashutosh Tiwari PW4 stated that samples were sent for chemical examination by the order of Superintendent of Police (Rural), Haridwar and order of Superintendent of Police (Rural) along with samples was handed over to him on 19.01.2009.
21. In absence of entry of dated 19.01.2009 of Maalkhana Register, it would be difficult to believe that on 19.01.2009, in fact, samples were taken out from Maalkhana along sample seal and both remained intact in the Maalkhana. It is not understandable as to how sample came out for chemical examination from Maalkhana without there being any entry in the Maalkhana Register.
922. In view of the discussion made hereinabove, in the opinion of this Court, prosecution has failed to prove the guilt of accused persons beyond reasonable doubt, therefore, appellants are entitled for benefit of doubt and their conviction seems to be unjustified, consequently, all the appeals are allowed. Impugned judgment and order dated 19.06.2010 is hereby set aside. All the appellants stand acquitted of the charge levelled against them. Appellants are in jail. Let they be released from jail forthwith, if not wanted in any other case.
23. Office is directed to keep copy of this judgment in each connected case and forward copy of this judgment to the court below for compliance along with lower court record.
(Alok Singh, J.) 11.04.2013 SKS 10