Allahabad High Court
Manohar Lal & Others vs State Of U.P. on 15 June, 2010
Author: Yogendra Kumar Sangal
Bench: Yogendra Kumar Sangal
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Reserved
AFR
Court No. 10
Case :- CRIMINAL APPEAL No. - 26 of 1992
Petitioner :- Nabi Bux
Respondent :- State Of U.P.
Petitioner Counsel :- M.L. Yadav,Prem Singh
Respondent Counsel :- Govt. Advocate
AND
Case :- CRIMINAL APPEAL No. - 48 of 1992
Petitioner :- Manohar Lal & Others
Respondent :- State Of U.P.
Petitioner Counsel :- R.D. Pathak,M.L. Yadav
Respondent Counsel :- Govt. Advocate
Hon'ble Yogendra Kumar Sangal,J.
Both these appeals are filed by the accused convicted by the trial court in S.T. No. 314/1989 State vs. Manohar in case crime No. 197/1988 under Section 8/18/21/22 of Narcotic Drugs and Psychotropic Substances Act (for short, 'the Act'), P.S. Safdarganj, District Barabanki. By the impugned judgment and order, learned 3rd Additional Session Judge, Barabanki vide order dated 14.01.1992 convicted all the three accused persons after holding them guilty under Section 21 of the Act and sentenced them for 10 years R.I. Each and to pay 1 lac as fine each and in default of payment of fine, they shall undergo further R.I. of 1 year each.
As per prosecution case, on the information a raid was arranged and all the three appellants along with Sagir (not the appellant) were apprehended when they were indulged in manufacturing the morphine from opium. After taking all precautions and applying the procedure laid down under the provisions of the Act. One kilogram morphine, one packet morphine croud oil and one packet of brown powder (which was later on found heroin) and opium was recovered along with manufacturing unit of
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morphine from opium. Articles were seized and sealed after drawing the sample. Accused persons were brought at police station. Report was lodged. Sample of recovered articles were sent for analysis and report prepared and sent by examiner. As per report morphine heroin and opium was found in the sample drawn and sent for analysis. After completing the investigation, charge-sheet was submitted against all the three accused persons. Accused persons appeared before the Court. They were charged for the violation of the provisions of Section 8/21 of the Act but they have pleaded not guilty and claimed their trial.
Three witnesses were examined on behalf of the prosecution. PW-1 Srikant Mishra , PW-2 Ashok Tiwari are the eye-witnesses of the occurrence and they were member of raiding party. PW-1 was officer-in- charge of police station. They have unfolded the prosecution case in their oath statement and proved the documents prepared by them on the spot. PW-3 Sajjad Hussain, he proved that after taking the sample drawn from the Malkhana having intact sealed, he went to laboratory at Lucknow and handed over the packets there and returned back to the police station and proved entry of J.D. Exhibit-K6 and Exhibit-K7. PW-4 S.I. Udai Bhan Singh who had conducted the preliminary investigation. He stated that after after concluding the investigation, charge-sheet was submitted by the S.I. Ramesh Chandra Dube. PW-4 had proved the site plan and charge- sheet Exhibit-K8 and Exhibit-K9.
The accused in their statement under Section 313 CrPC had denied the correctness of the case and evidence of the prosecution and pleaded not guilty. In defence one witness accused Manohar examined himself and stated that he made complaint to the Chief Minister against the police of P.S. concerned. He has also filed the copy of the complaint.
After hearing the parties counsel and perusing the record, by the
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impugned judgment and order, learned trial court held guilty to all the three accused persons and sentenced them as above. Co-accused Sabir was acquitted from the charges leveled him.
Aggrieved by the judgment and order, all the three appellants have filed two appeals. One Appeal No. 26/1990 by Nabi Bux alias Bhallar and others by rest two accused-appellants and challenged the findings and order of conviction of the trial court on the different grounds. Any of the appeal filed by the State against the acquittal order of Sabir not pressed by the learned AGA.
Heard learned counsel for the appellants, learned AGA for the State and perused the record.
As both the appeals are arises out of the same judgment and order so both were consolidated and are being disposed of by this common judgment.
Section 41, 50, 51, 52A, 57 etc. of N.D.P.S. Act provides procedure when the information is received by the police persons that offence related to Narcotic Drugs and Psychotropic Substances and Control Substances is committed or being committed punishable under the provisions of the Act at certain place by the certain persons, what the police officer etc., has to take precaution and to do before search of that place or seizure of contraband article and arrest of those accused persons and information to the accused persons or their relative and also to higher authorities in this regard and also how to deal with the seized property and accused persons. In the present case PW-1 Srikant Mishra and PW-2 Ashok Tiwari one of them incharge of raiding party and also station officer of P.S. concerned have stated that when they were in petrol duty and also investigating certain other cases and were going to arrest to the accused persons of other case, they received information that offence is being committed
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defined under the provisions of Act. It was informed to them that certain persons are indulged in manufacturing the morphine from the opium. In a secret way they saw the place in the company of that informant and assured themselves that some miscreant are involved in unlawful activities referred above. The incharge of the team PW-1 Srikant Mishra seeing that he has no authority to make search, seizure or arrest under the provisions of Act went to Barabanki to obtain authority letter for the purpose of carried out the search, seizure and arrest. He instructed his companion to keep eye on the activities of the accused persons. He obtained authority letter Exhibit-K-1 and came back on the spot. Two public witnesses Ram Kishore and Satya Narayan were also arranged in raiding party and raid was made. Accused persons were surrounded as they have tried to fleeing away. Even then one Sabir was succeeded in escaping from there. They were afforded the opportunity of their search before Gazetted Officer/Magistrate. Letter of consent was got prepared to the affect that they were ready and willing to be searched by the officer-in-charge of team instead of Gazetted officer or Magistrate. Place and accused persons were searched. From the spot opium morphine and another packet of brown colour material (later on found heroin) was recovered along with manufacturing unit of preparing morphine from the opium. Accused persons were taken into custody. Contraband articles were weighted, seized and sealed after drawing sample for the purpose of sending for the report of analyst. Sample seal was also prepared. Accused persons were brought at police station. FIR was lodged against them. Higher authorities were informed by a wireless set as said by the PW-1 who was incharge of the team. After receipt of analysis report, it was confirmed that articles recovered were opium morphine and heroin respectively.
Both the witnesses PW-1 and PW-2 have supported the prosecution
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case in toto by their on oath statement. No any such discrepancy, material contradiction, unnaturality, improbabilities were pointed out during the course of argument by the learned counsel for the appellants to disbelieve them. Their evidence is reliable and cogent. Both the witnesses have also proved the documents prepared on the spot.
Although accused persons have pleaded not guilty but it was not explained and got established that from where they were apprehended by the police and why and how they were involved in the present case by the police persons. One of the accused Manohar has examined himself as DW-
1. In his oath statement, he had simply stated that co-accused Shivpujan is his cousin brother. They both were being harassed by the police of P.S. Safdarganj. They were pressed that as business of opium is going on in their village, they should help the police in apprehending the miscreants. In connection with he moved the application to the Chief Minister and he has also filed the copy of the same and said it bears his signatures which is Exhibit-Kh-2 on record. He said that it is not in his knowledge what was the result of his complaint. In his cross-examination he stated that he himself has handed over the complaint either to a Sepoy or peon of the office of Chief Minister but he has not received any receipt of the same. He conceded that this complaint was not sent by him through registered post. He had also conceded that no complaint was made to S.S.P. about their harassment by police of P.S. concerned. He also said that he was not being harassed by Darogas. Only Sepoy used to harassed him. He had admitted that he has not made any complaint to Darogas about the act of Sepoy. He also failed to tell the name of those Sepoy. His own this statement was dealt by the learned trial court and held that in no manner it helps to the accused. How and under what circumstances and from where he and his cousin brother Shivpujan were apprehended by the police and why their
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family members have not informed regarding their arrest to higher authorities, it is also not sufficiently explained by him. Even after the arrest, when he was produced before the Magistrate why he has not made such complaint oral or in writing and again when he was in jail through jail authorities, why he has not sent the complaint to higher authorities of the district, it is also not sufficiently explained on behalf of him. No prayer was made on his behalf to get summoned this original complaint from the office where he claimed had submitted. From the above findings, it is clear that with concentration and legal mind this document Exhibit-K2 was got prepared by him and he stated on oath as above.
It was further argued that two independent witnesses of the occurrence Ram Kishore and Satya Narayan were there as per own case of the prosecution but no cause has been given on behalf of the prosecution why they were not examined. Learned trial court dealt this point in the impugned judgment and with detailed and sufficient reasons held that there is no effect of their non-examination in the present case. Learned AGA argued that there remains always a possibility that the public witnesses made turn hostile and not supporting the case of the prosecution or may be hesitant in appearing in the Court and deposed against the accused for various reasons may be fear. To became a witness of search, seizure and recoverey is one thing and thereafter to give evidence before the court is entirely a different thing. Commonly an independent witness of recovery will think twice before entering into a witness-box if at all he enters the same one would not be surprised if does not support the prosecution on variety of the reasons mentioned above. In these circumstances if prosecution has given up the independent/ persons having been win over by the accused or for other reasons is fully justified in the present days situation in the society and no adverse inference
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against the prosecution can be drawn in the facts and circumstances of the case.
Learned counsel for the accused appellant further argued that the conviction has been recorded merely on the testimony of two police officers without any independent corroboration is also of no merit. It is certainly not the law that in each and every case irrespective of the case and attending circumstances the evidence of police officer, require corroboration before it is accepted or is to be acted. The presumption that a person acts honestly applies so much in favour of the police officer and of other persons and it is not the judicial approach to suspect them without good ground. Therefore, even if the testimony of police officer required some corroboration to be acted upon the corroboration does not necessarily mean that the witnesses should be corroborated by other witnesses only. It is established law that in the trial of the accused in criminal cases number of witnesses are not to be seen, only the quality of the evidence on the record is to be seen. The testimony of a police officer can be corroborated by way of some intrinsic circumstantial evidence available on the record. Facts mentioned in the documents prepared on the spot also supports their oath version. Investigation of the case was handed over to another officer, he had after investigation found that case against the accused persons is made out and charge-sheet was submitted against them for their trial. There is nothing to reach at the conclusion that the police officer was malicious and interested in falsely framing up the accused persons. The testimony of both these police officer could not shaken in their detailed cross-examination on any material involved in the case. It is law of land that evidence of police persons requires a strict scrutiny. Giving detailed and sufficient reasons, learned trial court had placed reliance on the on testimony of both these police persons.
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Learned counsel for the appellants failed to point out any discrepancy, material contradiction in their testimony and nothing was also shown why their on oath testimony should be disbelieved. In these facts and circumstances if no independent witness was examined on behalf of the prosecution it will not affect the merit of the case.
Certain irregularities in search, seizure and arrest of the accused were argued on behalf of the accused persons. From the impugned judgment and order, it reveals that alleged irregularities were dealt by the trial court in detailed. Relying on the law of Hon'ble Apex Court laid down in case AIR 1990 Supreme Court 209 and also AIR 1980 Supreme Court 593 State of Maharashtra vs. Natwar Lal and also relying on the amended Rules of 1977 framed under the Act, learned trial court held that illegality in search, seizure etc. will not affect the validity of the arrest, seizure and search and it cannot vitiate the evidence collected at in the trial. In case (2005) 4 Supreme Court Cases 350 State vs. Pawan Kumar Bench of Hon'ble Three Judges had laid down principle of law as follows :-
"Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. It has acquired the dimensions of an epidemic, affects of economic policies of the State, corrupts the system and is detrimental to the future of a country. It is, therefore, absolutely imperative that those who indulge in these kinds of nefarious activities should not go scot-free on technical pleas which come handy to their advantage in a fraction of a second by slight movement of the beggage, being placed to any part of their body, which baggage may contain the incriminating article."
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Learned counsel for the appellant has failed to demonstrate any illegality in the order of the trial court. I find that trial court has discussed the evidence in detailed in right perspective and on the basis of the evidence from record the findings recorded by it cannot be said to be perverse or illegal in any manner warranting any interference by this Court.
Learned counsel for the appellant further argued that sentence awarded by the trial court is excessive. Seeing the facts and circumstances of the case and holding that accused persons were found involved in manufacturing morphine from the opium and heroin was also recovered from their possession and keeping the law laid down by the Hon'ble Apex Court in Pawan Kumar's case (supra), I am of the view that already lenient view has been taken by the trial court in awarding the sentence. No interference by this Court is required in any manner in the findings of the trial court. Both the appeals have no force and liable to be dismissed. Accordingly Appeal No. 26/92 and Appeal No. 48/1992 are hereby dismissed. Findings of the learned trial court convicting the accused and sentencing them are upheld. Accused persons are on bail. Their bail are hereby cancelled. Copy of the judgment and record of the trial court sent to the trial court concerned forthwith for issuing process against the accused persons for their arrest and procure their attendance before him. If they appeared or brought before the Court they be taken into custody and sent to jail to serve out the sentence already awarded by the trial court.
Order Date :- 15.6.2010 Rakesh