Allahabad High Court
Munnan vs State Of U.P. on 5 January, 2021
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Delivered on 05.01.2021 Court No. - 31 Case :- CRIMINAL APPEAL No. - 437 of 1997 Appellant :- Munnan Respondent :- State of U.P. Counsel for Appellant :- S.Pradhan Counsel for Respondent :- Govt. Advocate Hon'ble Virendra Kumar Srivastava,J.
1. The instant criminal appeal has been preferred, under Section 374 Cr.P.C. (hereinafter referred to as 'Code'), against the judgment and order dated 16.7.1997, passed by Additional Sessions Judge-I, Barabanki in Sessions Trial No. 146 of 1991, arising out of Case Crime No. 79 of 1991, P.S. Zaidpur, District Barabanki, whereby, the appellant-Munnan (hereinafter referred as 'appellant'), has been convicted and sentenced for the offence under Section 8 r/w Section 21 of Narcotic Drugs and Psychotropic Substance, 1985 (hereinafter referred to as 'N.D.P.S. Act') for ten years rigorous imprisonment and fine of Rs. 1,00,000/- and in default of the payment of fine, he has to undergo one year further imprisonment.
2. The prosecution case, in brief, is that on 29.6.1991, S.I. Narendra Singh Yadav (PW-4), Station-In-Charge of P.S. Zaidpur, District Barabanki, was returning from the office of Superintendent of Police, Barabanki and when he was on his way, received a secret information that a person carrying narcotic drugs, was likely to pass by bicycle from village Tikkra towards Lucknow. On the basis of such information, S.I. Narendra Singh Yadav (PW-4), S.I. Kripa Shankar Dixit (not examined) with S.I. Mukhram Yadav (PW-3) accompanied with Constable 194 Mahendra Prasad (not examined) and Constable 555 Kamlesh Mishra (PW-2), arrived near Chandauli culvert and took a position near the cycle shop of Mazhar. S.I. Mukhram Yadav (PW-3) was sent to village Chandauli to arrange the public witness but he returned after some time and informed that no public witness was ready to become witness against the smugglers on account of their terror. The police party waited for half an hour, meanwhile they noticed that one person was coming by cycle from village Tikkra. As the said person reached near police party at about 21:15 p.m., the police party surrounded him all of sudden and he started apologizing. When he (appellant) was asked, as to why, he was seeking apology, he disclosed that he was carrying one k.g. morphine, wrapped in towel (anghocha) in his belly region. Upon further inquiry, he disclosed himself as Munnan s/o Jan Ali r/o Bhelwal, P.S. Loni Katra. District Barabanki.
3. Upon satisfying himself that the appellant was carrying a contraband morphine, S.I. Narendra Singh Yadav (PW-4) asked him, as to whether, he desired to be searched himself before any Magistrate or any Gazetted Officer or before the police party led by him (PW-4). In this regard, a consent memo (fard-razamandi-jama-talashi) (Ex.Ka.4) was prepared by S.I. Kripa Shankar Dixit on the direction of S.I. Narendra Singh Yadav (PW-4). Appellant consented that his search may be taken by the police party, led by S.I. Narendra Singh Yadav (PW-4) and upon his consent, appellant was searched and one k.g. morphine was recovered from his belly region, concealed below his kurta-lunghi, wrapped in light blue towel (anghocha). The said contraband was kept in a white polythene (wax paper) and was of brown colour. It was physically inspected, smelled by police party and was discovered as a morphine. The said recovered morphine was weighed with the help of scale, carried by S.I. Kripa Shankar Dixit. It was again wrapped in the said anghocha, after placing it in the said plastic bag, tied by thread. S.I. Kripa Shankar Dixit prepared the seizure memo (Ex.Ka.5) on the dictation of S.I. Narendra Singh Yadav (PW-4) and the said seizure memo was read over to the witnesses and the police party and their signatures were obtained upon it. A copy of the recovery memo (Ex.Ka.5) was given to the appellant and his thumb impression was taken upon it. Sample seal (Ex.1) was also prepared on the spot.
4. Appellant along with recovered contraband morphine, was brought at police station Zaidpur and the First Information Report (Ex.Ka.1) (hereinafter referred to as 'F.I.R') was lodged and the said contraband was kept in Maalkhana. Investigation of the case was handed over to S.I. Kailash Yadav (PW-5). During investigation, a report was submitted to C.J.M., Barabanki on 1.7.1991 for drawing representative sample and preparation of docket. Under the direction of C.J.M, representative sample was drawn on 1.7.1991 and docket (Ex.Ka.3) was prepared. Const. Kamlesh Kumar Mishra (PW-2) carried the sealed representative sample to Forensic Science Laboratory (hereinafter referred to as 'FSL'), Mahanagar, Lucknow, for chemical examination and after examination, a report (Ex.Ka.10) was submitted by FSL, Lucknow that said sample of contraband drug was found as heroin. P.W.5, Investigating Officer, during investigation visited the place of occurrence, prepared site plan (Ex.Ka.8), recorded the statement of witnesses and after investigation, submitted a charge-sheet (Ex.Ka.9) before the Sessions Judge, Barabanki.
5. Charges for offence Under Section 8 read with 21 of N.D.P.S. Act were framed by the trial Court and it was read over to the appellant which he denied and claimed for trial.
6. Prosecution, in order to prove its case, produced Constable Krishna Kumar Singh (PW-1), Constable Kamlesh Kumar Mishra (PW-2), S.I. Mukhram Yadav (PW-3), S.I. Narendra Singh Yadav (PW-4), S.I. Kamlesh Yadav (PW-5), wherein, PW-1 and PW-5 are witnesses of fact and rest are formal witnesses.
7. After conclusion of prosecution evidence, the statement of appellant was recorded under Section 313 of the Code, where he denied the prosecution story and stated that no recovery was made from his possession and all the documents were prepared fraudulently by police with a view to falsely implicate him. He further stated that he was very poor person; Smt. Tarikunnisha, daughter of one Mohsin Ali, his neighbour, was married to one Hasib of village Tikkra. Hasib used to torture his wife Smt. Tarikunisha and threatened to kill her. He further stated that in view of the said dispute between Hasib and Smt. Tarikunnisha, Mohsin Ali sent him (appellant) to bring his daughter where Hasib Ali had quarreled with him and also beaten him. It is further stated that Hasib, with the help of local police, had falsely implicated him. It is further stated by him that he was not arrested from the place of occurrence as alleged by the police and no incriminating article was recovered from his possession.
8. To controvert the prosecution story, Ejad Ali (DW-1) was examined by the appellant who stated that the daughter of Mohsin, Tarikunnisha was married with Hasib and Hasib used to beat his wife Tarikunnisha and was also not sending her to her maternal house. He further stated that the appellant Munnan was sent by Mohsin Ali to take off (vidai) Tarikunnisha but Hasib had refused to send her and a quarrel had taken place between them. He further stated that due to said dispute, the appellant was falsely implicated in the aforesaid case at the behest of Hasib.
9. After conclusion of trial, learned trial Court found the appellant guilty for the offence U/s 8 read with 21 NDPS Act and sentenced him as above vide impugned judgment and order.
10. Aggrieved with the said judgment, this appeal has been preferred.
11. Heard Sri Shishir Pradhan, learned counsel for the appellant and Sri Tilak Raj Singh, learned counsel for the State.
12. Learned counsel for the appellant submitted that the appellant is innocent and has been falsely implicated in this case by the police. Learned counsel further submitted that the police had not complied the mandatory provisions of Section 50 of NDPS Act. Learned counsel further submitted that no public witness was produced, whereas, the said recovery was made at a very busy public place and star witness of the prosecution, who brought the weighing scale, prepared the recovery memo and consent letter, i.e. S.I. Kripa Shankar Dixit, was also not examined. Learned counsel further submitted that according to the prosecution, the recovery was made in the night, in the light of torch, but neither the torch was produced before the Court nor it was taken into custody. Learned counsel further submitted that according to the prosecution case, the appellant was riding on bicycle, at the time of occurrence, but his bicycle was also not taken into custody by the police. Learned counsel further submitted that according to the prosecution, the morphine was recovered from his possession but in chemical examination, it was found as heroin. Learned counsel further submitted that the separation of representative sample is also defective and the statement of witnesses in this regard are not reliable. Learned counsel further submitted that neither any copy of the recovery memo was given to the appellant nor any information of his arrest was sent to his near relatives. Learned counsel further submitted that the whole prosecution story is false and concocted. The learned trial Court, without considering the evidence available on record, passed the impugned judgment and order which is against the mandatory provision of N.D.P.S. Act and is liable to be set aside. Learned counsel for the appellant has relied upon the judgment State of Rajasthan vs. Parmanand and Another (2014) 5 SCC 345.
13. Per-Contra, learned A.G.A. while vehemently opposing the submission made by learned counsel for the appellant submitted that as the alleged recovery was made in the night at 9:15 p.m, and no independent witness was ready to become witness of the recovery, non examination of any independent witnesses is not fatal to the prosecution story. Learned A.G.A. further submitted that the statement of prosecution witnesses cannot be rejected only on the ground that they are police personnel. Learned A.G.A. further submitted that there is neither delay in lodging the F.I.R. nor any delay in producing the contraband products before the concerned C.J.M for drawing the representative sample. Learned A.G.A. further submitted that the recovered article has also been found as contraband heroin in chemical examination by F.S.L. Learned A.G.A. further submitted that the appellant had failed to produce any reliable evidence to prove his innocence. The impugned judgment and order is will reasoned, well discussed and it requires no interference.
14. I have considered the rival submission made by learned counsel for the parties.
15. It is relevant to point out, before discussing the evidence and material available on record in the light of submission made by learned counsel for both the parties, that severe punishment has been provided under N.D.P.S Act for the offence related to commercial quantity which is not less than 10 years rigorous imprisonment with minimum fine of Rs. 1,00,000. In view of the gravity and severity of the punishment, certain important safeguards have been provided under Section 50 of the Act with a view to prevent the misuse of the Act which is as under:-
"Section 50.- Conditions under which search of persons shall be conducted.
(1)When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5).................................
(6)................................
16. The Hon'ble Supreme Court in a catena of decisions, has discussed the importance of Section 50 of NDPS Act. In State of Punjab vs. Baldev Singh AIR 1999 SC 2378, the Constitutional Bench of Supreme Court has elaborately discussed the importance and scope of mandatory provisions of Section 50 of NDPS Act as follows :
"55. On the basis of the reasoning and discussion above, the following conclusions arise :
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;
(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;
(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;
(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial;
(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; ....................."
(Emphasis supplied)
17. In Vijaysing Chandubha Jadeja vs. State of Gujarat, AIR 2011 SC 77 while discussing the scope of Section 50 of NDPS Act, the Constitutional Bench of Supreme Court while observing that mere informing the accused his willingness to be searched before Gazetted Officer or Magistrate is not sufficient but it is the duty of the concerned officer to apprise the accused about his/her right of Section 50 of the Act has held as under :-
"22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Poll14, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well." (Emphasis supplied)
18. In Arif Khan @ Agha Khan vs. State of Uttarakhand AIR 2018 SC 2123, Hon'ble Supreme Court while discussing the importance of compliance of mandatory provision of Section 50 of N.D.P.S. Act, has held as below:-
21. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172: (AIR 1999 SC 2378) and Vijaysinh Chandubha Jadeja (AIR 2011 SC 77) (supra).
22. Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (AIR 2011 Sc 77) (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject.
23. Their Lordships have held in Vijaysinh Chandubha Jadeja (AIR 2011 SC 77) (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. (See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392) : (AIR 2011 SC 1939). (Emphasis Supplied)
19. Thus, it is clear that if the contraband narcotics was recovered in contravention of specific mandate of Section 50 of the Act, the whole prosecution story becomes doubtful and the appellant is entitled for acquittal.
20. Now, the question arises whether there is compliance of Section 50 of the Act or not?
21. In recovery memo (Ex.Ka.5), it has specifically been mentioned that when the appellant was arrested by the police personnel, he confessed that he was carrying one kg morphine, wrapped in anghocha (towel) on his belly region. Upon his disclosure, Narendra Singh Yadav (PW-4) gave the appellant three options i.e. (i) whether he desired his search before any Magistrate, (ii) before any Gazetted Officer or (iii) before himself (PW-4); whereupon, the appellant desired his search be conducted by PW-4. Thereafter, farz-razamandi/consent memo (Ex.Ka.4) of personal search was prepared in presence of police personnel and the appellant was personally searched, in the light of torch, by S.I. Narendra Singh Yadav (PW-4) and one kg morphine was recovered from his belly region which was concealed under lunghi-kurta, worn by him (appellant). The said contraband was kept in a milky white polythene (wax paper). S.I. Mukhram Yadav (PW-3) and S.I. Narendra Singh Yadav (PW-4), main witnesses, also stated that the said contraband was recovered from belly region of appellant, concealed by him under lunghi-kurta and before his search, the aforesaid three options were also given to him.
22. In Section 50 of the N.D.P.S. Act, only option, which is required from the accused, to be sought before the personal search of accused carrying the contraband narcotics, is as to whether, he requires his personal search to be made before any gazetted officer or before Magistrate and if such person so requires, it becomes the duty of concerned police officer to take such person without any unnecessary delay to the nearest gazetted officer or nearest Magistrate of concerned department. In this provision, the third option, as to whether, the accused wants to be personally searched before the concerned police officer himself, has not been provided. Hon'ble Supreme Court, in State of Rajasthan vs. Parmanand and another (supra), where for compliance of Section 50 of Act, three options were given by the concerned Sub Inspector of Police to the accused-appellant, whether he wants to be searched before nearest Magistrate or before nearest gazetted officer or before concerned police officer i.e. J.S. Negi (PW-5), dismissing the appeal filed by the State against the acquittal order passed by High Court, held as under:-
"We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated."
23. Coming to the facts of this case, admittedly, the said contraband narcotic was recovered from personal search of appellant Munnan, concealed in his belly region below kurta and lunghi, worn by him. In addition to above, consent memo (Ex.Ka.4) was prepared in presence of police party and appellant Munnan. According to prosecution, the said recovery was made by S.I. Narendra Singh Yadav (PW-4) in presence of S.I. Kripa Shankar Dixit, S.I. Mukhram Yadav (PW-3), Constable 194 Chandrika Prasad and Constable Kamlesh Mishra (PW-2) who have put their signatures on recovery memo (Ex.Ka.5) but the consent memo (Ex.Ka.4), prepared by S.I. Kripa Shankar Dixit does not show the signature either of S.I. Mukhram Yadav (PW-3) or Const. Chandrika Prasad or Const. Kamlesh Mishra (PW-2).
24. Mukhram Yadav (PW-3) has stated that the said consent memo (Ex.Ka.4) was prepared by S.I. Kripa Shankar Dixit which was read over to the appellant and thereafter the appellant put his thumb impression and S.I. Kripa Shankar Dixit had also put his signature. This witness has not stated that Narendra Singh Yadav (PW-4) had also put his signature on this consent memo (Ex.Ka.4), whereas, Narendra Singh Yadav has stated that on consent memo (Ex.Ka.4), prepared by S.I. Kripa Shankar Dixit, he had also put his signature.
25. Admittedly, S.I. Kripa Shankar Dixit, who was star witness of the prosecution, who prepared the consent memo (Ex.Ka.4) and recovery memo (Ex.Ka.5) and the said recovery was made in his presence has not been examined by the prosecution and the prosecution has also not given any explanation, as to why, this important witness was not examined. Thus, in view of the above, the consent for search, given by the appellant, before his personal search as well as the preparation of consent memo is also doubtful.
26. In view of the above, the prosecution has failed to prove the compliance of mandatory provision of Section 50 of the Act, as required in the light of law laid down by Hon'ble Supreme Court in Baldev Singh (supra), Vijay Singh (supra), Arif Khan (supra) and Parmananad (supra), whereby the prosecution story as well as said recovery, becomes doubtful.
27. It is also pertinent to note at this juncture that according to the prosecution, one kg morphine was recovered from the possession of appellant. PW-3 and PW-4 have clearly stated that after weighing the said contraband morphine was again wrapped in the said anghocha (towel) and was also sealed. Neither these prosecution witnesses have stated that any sample was separated from the said contraband morphine at the place of recovery nor it has been mentioned in recovery memo (Ex.K.a5). According to PW-4, after recovery, recovered morphine, sample seal and accused-appellant along with his cycle were brought to the concerned police station; criminal case was registered; appellant was put in hawalat and the recovered morphine and sealed sample were deposited in maal-khana, whereas, cycle was kept in thana compound. This witness has not stated that when the recovered morphine was sent for chemical examination to FSL. Kailash Yadav (PW-5), Investigating Officer, has also not stated as to when the sample was separated from the said recovered morphine and was sent to F.S.L for chemical examination. In cross-examination, he stated that he had visited the maal-khana register on 7.7.1991 but no sample of recovered morphine was available because it was sent for examination on 1.7.1991 by the previous Investigating Officer. The prosecution has also not examined the said previous Investigating Officer, to prove, as to when the said contraband morphine was taken out from malkhana and was sent for chemical examination.
28. Constable 55 Kamlesh Mishra (PW-2) has stated that on 1.7.1991, he had appeared with S.I. Narendra Singh Yadav (PW-4) before C.J.M, Barabanki along with case property (recovered contraband) with sample seal, for preparation of docket and separation of sample of case property (recovered contraband). He further stated that the case property (recovered contraband) and sample seal were produced before the C.J.M, who after separation of sample from recovered contraband got the remaining contraband material sealed; the sample seal and docket (Ex.Ka.3) were also prepared and signed by the concerned C.J.M. After preparation of docket, he deposited the sample seal along with docket to FSL, Lucknow on 2.7.1991. He further stated that the said contraband one kg morphine was recovered in his presence. Thus, according to this witness as well as PW-3 and PW-4, one kg morphine was recovered from the possession of appellant and according to PW-2, sample of said morphine was separated in presence of concerned C.J.M and also in presence of S.I. Narendra Singh Yadav (PW-4) but S.I. Narendra Singh Yadav (PW-4) has not stated in his examination that after the alleged recovery, on 1.7.1991 he had also gone with Kamlesh Kumar Mishra (PW-2) and the sample was separated before concerned C.J.M in his presence.
29. In addition to above, according to prosecution, the recovered contraband was morphine and the sample was separated therefrom. None of the witness had stated anything, anywhere regarding the quantity of sample, separated and sent for chemical examination. Constable Kamlesh Kumar Mishra (PW-2), in his examination in chief, has also not stated regarding the identity of container, wherein, the sample was kept. In cross-examination, he admitted that the said container was of 100 grams of Tobacco Casket No. 132 which was provided by peon of concerned C.J.M. He further stated that he did not learn regarding the detailed identification of the said casket. In docket (Ex.Ka.3), it has been mentioned that only 2 grams morphine was separated. PW-2, has not stated anything regarding the weighing machine by which the said sample was separated in presence of concerned C.J.M. He has also not stated that who brought the said weighing machine.
30. From perusal of report dated 26.8.1991 (Ex.Ka.10), prepared by F.S.L, Lucknow, it is clear that no quantity of contraband sample was mentioned. In the said report, it has been mentioned that the said sample was received on 2.7.1991, as suspicious heroine, wrapped in a paper and kept in a chand-tara-marka-gul-dibbi (casket) which, on chemical examination, was found as heroine. Thus, this report shows that the said contraband goods was not placed in tobacco casket marked as 132 tobacco as stated by PW-2. In addition to above, according to prosecution, the recovered contraband was morphine but in chemical examination, it was found as heroine. In notification issued by Central Government specifying Small Quantity and Commercial Quantity under N.D.P.S Act, the heroine has been listed on serial no. 56 with its chemical name 'diacetylmorphine', whereas, morphine has been listed on serial no. 77 with its chemical name only 'morphine'. Thus, it is clear that the heroine and morphine are containing different chemical property/name. In view of above discussion, the prosecution evidence is also doubtful regarding the veracity and truthfulness of manner of withdrawal of sample, its seal and dispatch as well as identity of sample of contraband goods sent for chemical examination.
31. It is also pertinent to point out at this juncture that according to prosecution case, the whole search and recovery proceeding was made at or about 21:15 p.m. on 24.6.1991 in the light of torch but the prosecution has failed to prepare memo of torch and also failed to produce it before the trial court. Further, according to the prosecution, at the time of recovery, the appellant was riding his cycle. In recovery memo (Ex.ka.5), it has not been mentioned whether the said cycle was also taken by the concerned police party in custody, or not. Mukhram Yadav (PW-3) has stated that at the time of occurrence, he, S.I. Kripa Shankar Dixit, Constable Chandrika Prasad and Constable Kamlesh Mishra (PW-2) were instructed by S.I. Narendra Singh Yadav (PW-4) to proceed near Majhar cycle shop situated near by Chandauli culvert and PW-4 also came there. This witness has not stated that the cycle which was ridden by the appellant, was taken into custody or whether it was brought to the concerned police station whereas Narendra Singh Yadav (PW-4) has stated that the said cycle was brought to the concerned police station. In cross-examination, he has admitted that all the police party, returned to the police station, riding on two motorcycle. Two police persons each came on one motorcycle but no police person was with this witness. He further stated that the appellant was sitting in middle of motorcycle, ridden by Kripa Shankar Dixit, and one constable was also sitting behind him (appellant). According to this witness, all the police personals including the appellant came to the concerned police station from the place of occurrence by motorcycle. He (PW-4) has also admitted that no recovery memo of appellant's cycle was prepared. Thus, if all the police personnel including the appellant came to concerned police station by motor cycle and no prosecution witness has stated that how and by whom the cycle of appellant was brought to the concerned police station, the prosecution story that appellant was riding on cycle, was taken into custody and was brought at police station, becomes doubtful.
32. In addition to above, S.I. Narendra Singh Yadav (PW-4) has admitted that a secret information was received by him at 7:30 pm but he had not informed the same to his superior officer and also did not record the said information in writing. He has also admitted that he did not call any public witness nor felt its necessity. S.I. Mukhram Yadav (PW-3) in cross-examination had admitted that after arrival of PW-4, he had gone in village Chandauli to call witness, but he did not learn whether PW-4 had directed him for any witness or not. He further stated that in village Chandauli, he had asked 4-6 persons for witnesses but no one was ready and they escape without discussing their identity.
33. In this case, no independent witness was examined and S.I. Kripa Shankar Dixit who is star witness and prepared all necessary documentary evidence of prosecution i.e. consent memo (Ex.Ka.4) recovery memo (Ex.Ka.5), has also not been examined. Although it is settled principle of law that evidence of police witnesses cannot be disbelieved only on the ground that they are interested witnesses but in the fact and circumstances of this case as discussed above, absence of independent witness and non examination of S.I. Kripa Shankar Dixit, star witness of the case, who prepared recovery memo, consent memo and brought weighing scale, without any explanation, further created doubt in the prosecution case.
34. Thus, in the light of aforesaid discussion, I am of the view that the prosecution has miserably failed to prove its case beyond reasonable doubt, against the appellant. The trial Court, without considering, the compliance of mandatory provision of N.D.P.S Act, has passed the said impugned judgment and order in cursory manner which is liable to be set aside.
35. Consequently, the impugned judgment and order dated 16.7.1997 passed by trial Court in S.T. No. 146 of 1991 (State vs. Munnan) is hereby set aside. Appellant is acquitted and the appeal is allowed.
36. The appellant is on bail. His bail bonds are cancelled and sureties are discharged.
37. Keeping in view provisions of Section 437-A of Code, appellant Munnan is hereby directed to forthwith furnish a personal bond of the sum of Rs. 10,000/- and two reliable sureties of the like amount, before the Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against judgment or for grant of leave, appellant on receipt of notice thereof, shall appear before Supreme Court.
38. A copy of this judgment be sent to Trial court and concerned Superintendent of Jail by FAX for immediate compliance. Compliance report whereof be submitted within one month.
Order Date:- 05.01.2021 Saurabh