Allahabad High Court
Smt. Kusum Devi vs State Of U.P. on 23 January, 2019
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Judgment reserved on 22.12.2018 In Chamber. Case :- Jail Appeal No. - 4200 of 2017 Appellant :- Smt. Kusum Devi Respondent :- State Of U.P. Counsel for Appellant :- Mis. Seema Pandey (Amicus Curiae) Counsel for Respondent :- A.G.A Hon'ble Virendra Kumar Srivastava,J.
1.This criminal appeal has been preferred by the appellant Smt. Kusum Devi against the judgement and order dated 8.6.2017 passed by Additional Session Judge/ Fast Track Court No.2, District Siddharth Nagar in Special S.T. No.24 of 2011, State Vs. Smt. Kusum Devi, under section 8/20 N.D.P.S Act, Police Station Dumariyaganj, District Siddharth Nagar, whereby the accused/ appellant has been convicted and sentenced for the offence under section 20 (b)(II) (c) of NDPS Act for 10 years rigorous imprisonment and fine of Rs.1,00,000/-. In default of payment of fine she has been further directed to undergo six months additional simple imprisonment.
2.Briefly stated, the prosecution case is that on 7.6.2011 at 19.50 p.m. PW-1, S.I. Pankaj Kumar Gupta (S.O Dumariyaganj, District Siddharth Nagar,) was on patrolling duty in Kasba Domariyaganj with const. Ramji Yadav, const. Bansbahadur Sharma and const. driver Markandey Chandra. Meanwhile they received a secret information that a racket of drugs smuggler including some ladies are coming from Nepal via Krishnanagar Badhani border carrying with heavy amount of charas. Relying on that information, PW-1 S.I Pankaj Kumar Gupta informed the Circle Officer, Dumariyaganj (C.O) Sri Virendra Kr. Yadav and Sub- Divisional Magistrate (S.D.M). Dumariyaganj Sri Jalrajan Chaudhari and asked to incharge Mahila Thana, District Siddharth Nagar to provide lady constable. The said information was also entered in G.D report at 21-20 p.m. Thereafter they rushed to Bewa T crossing with P.W-4 S.I Brijesh Kumar Singh, const. Asthabhuja Tiwari, const. Tribeni Yadav and lady const. Vidya Singh. After some time const. Amar Nath and const. Satyanarayan Yadav also reached there. They waited the appellant. At 22-30 p.m, one UPSRTC bus came from the side of Dumariyaganj and one male person with three ladies got down from the bus. On the pointing out of informer, the police party intercepted them whereupon they tried to escape but were caught by the police party. On interrogation they disclosed their names and addresses as Kedar Mukhiya son of Ram Bahadur Mukhiya, village Bhawanipur Jitpur,Ward No.3. Police station Semra, District Bada, Nepal, Smt. Kushum Devi (appellant) wife of Baij Nath Sah village Romauli, Police Station Semra, District Bada, Nepal Km. Savita daughter of Ram Bahadur Mokktan village Lele, Police Station Chapagee, District Lalitpur Nepal and Smt. Madhuri Devi wife of Jagat Prasad village Jitpur, Police Station Semra, District Bada, Nepal. They further disclosed that they had 'Charas' in their bag which were carried by them from Nepal. Thereupon they were apprised of their right to be searched before any gazetted officer or Magistrate. They declined to avail their right to be searched out before any magistrate or gazetted officer and said that they were ready to be searched out by the said police personnel. The appellant and other ladies were searched out by PW-6 lady head const. Vidhya Singh whereas other co-accused Kedar Mukhia was searched by other police personal. Upon search sixteen rectangular plates type black colour material were recovered from the possession of appellant Kushum Devi. Similar quantity of same material were recovered from other co-accused. They told that recovered articles were 'charas'. On smelling it also appeared as 'charas'. However, to get exact weight of recovered charas conts. Asthabhuja Tiwari was directed to arrange the electronic weighing machine. After arranging the machine recovered articles were weighted and were found that weight of recovered 'charas' from the possession appellant was 4.050 kgs. Approximate 100gms of 'charas' from each recovered 'charas' were separated and kept separately as a sample in separate boxes and packed and sealed in white colour cloth. Rest recovered article were kept in bag of appellant wherefrom it were recovered and sealed in white colour cloth. Upon personal search some Indian and Nepalese currency note were also recovered from other co-accused but no other material was recovered from personal search of appellant. Recovery memo was prepared and got signed by each member of the police party and copy whereof were given to the appellant including other co-accused. First information report was lodged on the basis of recovered articles and seizure memo.The investigation was handed over to PW-4 Brijesh Kumar Singh and thereafter to PW-3 S.I. Daddan Singh the then Officer in-charge of police station Pathara Bazar.During investigation he inspected the place of occurrence and prepared site plan Ex.ka-5. The sample of recovered articles was sent for chemical examination and was found as 'charas'. Statements of witnesses were recorded and upon conclusion of investigation a charge sheet under section 8/20NDPS Act was filed against the appellant before the competent court.
The appellant was charged for the offence under section 20(b)(II)(c) NDPS Act. She denied from the said charge and claimed for trial.
After conclusion of prosecution evidence, statement of appellant under section 313 Cr.P.C was recorded. She claimed that the prosecution evidence was false. In defence D.W-1 Chandrawati Devi was produced by the appellant. Upon onclusion of trial, the trial court found the appellant guilty for the offence under section 20(b)(II)(c) NDPS Act, convicted and sentenced her as above by the impugned order and judgment. Feeling aggrieved, the appellant preferred this appeal.
3.Heard Ms Seema Pandey, Amicus Curiae, for the appellant and Sri Sanjay Sharma, learned A.G.A for the State and perused the record.
4.Learned Amicus Curiae appearing for the appellant has submitted that the prosecution case is doubtful and based on conjuncture and surmises. The prosecution has failed to prove its case beyond reasonable doubt. She has further submitted, (I) That the place of alleged recovery is a public place ie T. point crossing. It is a very busy place but no independent person was made as a witness to the alleged recovery.
(ii) That the alleged recovery and search was conducted by the police personnel in contravention of the provision of sections 42-57 of NDPS, Act as no evidence has been produced by the prosecution regarding any information to higher police authority before the alleged recovery.
(iii) That the presence of lady const. Vidya Singh is very doubtful and there is major contradiction regarding time of occurrence and recovery.
(iv) That the prosecution has also failed to produce the reliable evidence regarding weighing of recovered article,sample of seal and presence of seal on recovered article as well as on sample.
(v)That each pages the recovery memo was neither signed by the accused nor the member of raiding party.
(vi) That the source of light at the place of occurrence/ recovery is also doubtful.
(viii) That she was going to Lucknow with her husband Baijnath Prasad for his treatment but police caught her in Kasba Dumariyaganj and challaned in false case.
Hence, the trial court judgement is liable to be set aside.
5.Per contra, learned A.G.A appearing for the State has submitted that the appellant is resident of Nepal. She has not produced any reliable evidence regarding her presence at the place of occurrence. The huge quantity of 'charas' has been recovered from her possession. A case of prosecution cannot be thrown out for want of independent witness. The evidence produced by the prosecution is wholly trustworthy and reliable. Hence, the appeal is liable to be dismissed.
6.As regards the submission of learned Amicus Curiae for the appellant that no independent witness has been made to the alleged recovery or no independent witness has been produced by the prosecution, hence prosecution version is not reliable is concerned, now the position regarding the veracity and reliability of police witnesses has been well established. The Supreme Court in Tahir Vs. State (Delhi Administration) reported in AIR 1996 S.C. 3079, held as under :-
"In our opinion no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
Thus it is settled principle of criminal jurisprudence that only on the ground that no public witness was produced in support of the prosecution case, the evidence of police witnesses cannot be discarded. Police witnesses are as much as reliable as the public witnesses. Only careful scrutiny of their evidence, as a rule of prudence, is required. So, if the statements, given by the police witnesses, are reliable and trustworthy and their presence on the spot are natural, the prosecution can succeed only on the basis of the evidence of police witnesses.
In this case the prosecution has not examined any public witness. It has examined PW-1 S.I. Pankaj Kumar Gupta, the then station officer of P.S Dumariyaganj, PW-2 S.I. Ramji Yadav. P.W-3 S.I. Daddan Singh, PW-4 S.I. Brijesh Kumar Singh, PW-5 H.C.P. Mukhtar Ahmad, P.W-6 H.C.P. Vidhya Singh and P.W-7 H.C.P. Jaimangal Singh.
PW-1 S.I. Pankaj Kumar Gupta, PW-2, A.C.P Ramji Yadav, PW-4 S.I Brijesh Kumar Singh and PW-6 H.C.P. Vidya Singh were produced by the prosecution as eye witnesses to prove the prosecution case. Thus it has to be seen whether the statements of police witnesses are reliable or not.
7.So far as the submission of learned Amicus Curiae for the appellant that the relevant provision of NDPS, Act has not been followed by the raiding party, is concerned, from the perusal of statement of PW-1 S.I. Pankaj Kumar Gupta, it transpires that on 7.6.2011 at 19.50 p.m, when he was on patrolling duty with PW-2 S.I. Ramji Yadav, const. Bansbahadur Sharma and driver const. Markandey Chandra, he received an information that some peoples were coming from Nepal via Krishna Nagar crossing and about to go Lucknow via Dumariyaganj. On relying that information he had informed the C.O.(Deputy S.P), Dumariyaganj Sri Virendra Kumar and S.D.M. Dumariyaganj Sri Jalrajan Chaudhary. He had also requested to District Head Quarter Siddharthnagar to provide a lady constable. He has deposed that upon that information he came back to police station Dumariyaganj and entered the said information in general diary and thereafter proceeded to Bewa crossing with PW-4 S.I Brijesh Kumar Singh, PW-6 H.C.P. Vidya Singh and driver const. Asthabhuja Tiwary. Meanwhile, const. Amarnath and const. Satyanarayan Yadav also reached there. In cross examination, this witness has stated that he had given oral and written information to S.D.M. Dumariyaganj and C.O. (Dy. S.P.) Dumariyaganj. He has further deposed that he had not given any copy of the said written information to Investigating Officer. According to him, the offices of C.O. Dumariyaganj and S.D.M. Dumariyaganj are situated within one kilometers from the police station. PW-4 S.I. Brijesh Kumar Singh has deposed that he had not learnt whether PW-1 S.I Pankaj Kumar Gupta had given information to C.O. Dumariyaganj or S.D.M. Dumariyaganj or not. The prosecution has not placed any document wherein the said information of informant was written by PW-1 S.I.Panjak Kumar Gupta. Further, prosecution has also not produced any evidence regarding any response or direction given either by C.O. Dumariyaganj or S.D.M. Dumariyaganj to PW-1 Pankaj Kumar Gupta.
8.To curb the menace of smuggling and possession of narcotics drugs, the legislative has imposed a severe punishment and penalty under the provision of NDPS Act 1985 and to prevent the misuse of provision of NDPS Act some provisions regarding the safe guard of the interest of accused have also been introduced. These provisions are mandatory in nature. These provisions are sections 42,43,50,55 and the compliance whereof have been made mandatory. It has been settled by the several pronouncement of the Hon'ble Supreme Court that violation of mandatory safeguard as provided in NDPS, Act would be treated as grave miscarriage of justice.
Hon'ble the Supreme Court in Karnail Singh Vs. State of Haryana (2009)(8)SCC, 539 dealing with compliance of Section 42 has held as under:-
"35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows : -
(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001".
Thus, where the office/residence of Senior Police Officer/ Gazetted Officer and Magistrate were within one kilometers from the concerned police station, failure of PW-1 S.I. Pankaj Kumar Gupta to inform him in writing as well as failure of prosecution to produce the written information report or any reliable evidence regarding direction given by such gazetted officer or magistrate, if any, before the trial court makes the prosecution case doubtful.
9. It is also pertinent to note at this juncture that the raiding party has not informed the appellant in writing regarding her valuable right contained in Section 50 of NDPS Act. Similarly no written consent was given by the appellant. In addition to it raiding party has communicated orally to the appellant and other three accused persons regarding their right of Section 50 of NDPS Act. The prosecution has not specifically proved that whether the appellant was personally and separately communicated her right of personal search before any Gazetted Police Officer or Magistrate. It is also pertinant to note at this very stage that according to PW-1 S.I Pankaj Kumar Gupta, the offices of C.O. (Dy.S.P.) Dumariyaganj and S.D.M. Dimariyaganj were within one kilometers from the police station and due telephonic information were also given to them prior to raid and recovery but no effort was made by the raiding party to carry the appellant and other co-accused person before the Gazetted Police Officer/C.O. Dumariyaganj or S.D.M. Dumariyaganj. At this stage, the observation made by Hon'ble the Supreme Court in the case of State of Rajasthan Vs. Parmanand and another (2014) 2 SCC(Crl) 563 is very relevant which is quoted as under:-
16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before a nearest gazetted officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent No.2 - Surajmal is stated to have signed for himself and for respondent No.1 - Parmanand. Respondent No.1 Parmanand did not sign.
17 In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval."
10. It is also pertinent to note at this juncture that Section 50 of NDPS Act casts duty on official authorized under section 42 of the Act before personal search of accused to produce him, if he desires, before a nearest Gazetted Officer of any department as mentioned in Section 42 or to the nearest Magistrate. Hon'ble the Supreme Court in State of Punjab Vs. Baldev Singh AIR 1999 SC 2378 has held that in order to true compliance of section 50 it is also a duty of such official to inform the accused of his right provided under section 50 of the Act.
In Vijay Singh Chandubha Vs. State of Gujrat 2011(1) SCC (Crl) 497 while deciding the issue whether Section 50 of the NDPS Act casts duty on the empowered officers to inform the suspect of his right to be searched in the presence of Gazetted Officer or Magistrate, if so desires, or whether mere inquiring by the said officer as to whether the suspect would like to be searched in the presence of Magistrate or Gazetted Officer can be said to be due compliance with the mandate of the said section, Constitutional Bench of Supreme Court has held as under:-
"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 (1974) 2 SCC 33 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."
11.So far as the argument of learned Amicus Curiae regarding the presence of PW-6, lady constable Vidya Singh is concerned, according to prosecution case, P.W-6 lady constable Vidya Singh had reached at the place of occurrence on the request made by PW-1 S.I. Pankaj Kumar Gupta. From the perusal of statement of PW-1 S.I Pankaj Kumar Gupta, it transpires that the police party had reached at the place of occurrence before 22.30 p.m. PW-1 S.I. Pankaj Kumar Gupta, in his statement, has admitted that he had reached at the place of occurrence at 10.00 P.M. Though, he has stated, in his examination-in- chief that he had requested to District Head Quarter Siddharthnagar for providing a lady constable, but he has not stated anywhere as to how the lady const. Vidya Singh joined the company of raiding party and how and when she reached at the place of occurrence. PW-2 S.I. Ramji Yadav, has also not stated regarding the presence of PW-6 lady const. Vidya Singh. He has stated in his examination in chief as under:-
;g ?kVuk fn0 7-6+-11 dh gS A ml fnu eS ,l]vks] iadt dqekj xqIrk ds lkFk ljdkjh okgu ls {ks= Hkze.k dj jgs Fks A gekjs lkFk dk0 vIVHkqtk frokjh] ,0vkb0 c`ts'k dqek flag o ,l]vkb] nnu flg ekStwn FksA tc ge osok pkSjkgs ij igqps] vkSj pk; ih jgs Fks A FkksMh nsj ckn ,d ljdkjh cl osok pkSjkgs ij igqph A mles ls 3 vkSjrs o 1 enZ mrjdj pk; dh nqdku dh rjQ tkus yxs A,l]vks] aiadt dqekj xqIrk us gejkgh deZpkfj;ksa o vf/kdkfj;sa ds lkFk mu yksxkss dks 'kd ds vk/kkj ij jksdk Ajksddj ,l0vks0 mu yksxk ls iwNrkN djus yxsApkjks ds ikl ,d ,d >ksyk Fkk mudh ryk'kh ,l0vks0 lkgc us yhA ,d efgyk dk uke dqlqe Fkk] ,d dk uke lkfo=h Fkh]S ,d dk uke eq>s ;kn ugh gS Avkneh dk uke dsnkj eqf[k;k FkkA >ksys esa ls cjken inkFkZ ,l0vks0 lkgc us nqdku ls rjktw ckV fudkydj rkSykA PW-6 H.C.P. Vidya Singh, in her cross examination, has stated that she had reached at 22.30 p.m. at police station where PW-1 Pankaj Kumar Gupta was present with his team( Hamrahi). From the perusal of her examination-in-chief it transpires that she had reached on 7.6.2011 from police line Siddarth Nagar on the requisition of S.O. Dumariyaganj (P.W-1 Pankaj Kumar Gupta), at police station Dumariyaganj wherefrom she reached with raiding party at the place of occurrence before 22.30 p.m. PW-1 Pankaj Kumar Gupta has stated that he had reached on the place of occurrence at 10.00 p.m. and place of occurrence is 6-7 Km away from the police station. PW-2 Ramji Yadav in his cross examination has stated that he was with S.O.(PW-1 Pankaj Kumar Gupta) at the time of occurrence. He has further stated that he had departed from police station at 12.00 o' clock and reached at Bewa crossing at 4.00 p.m. and after one hour appellant and other co-accused were caught. Thus if the statement of this witness is true it means that occurrence was happened at 5.00 p.m and the presence of PW-6 Vidya Singh becomes doubtful. Thus, there is contradiction between the statement of prosecution-witness regarding the presence of lady constable PW-6 Vidya Singh, at the place of occurrence.
12. So far as the submission of learned Amicus Curiae regarding the presence of seal on the recovered article is doubtful is concerned, in Ext-ka-1 seizure memo, the details of seal, has not been mentioned wherefrom it can be inferred that whose seal was used in sealing the recovered article. In this memo although it has been mentioned that the sample of seal (Namoona Mohar) was prepared but no sample of seal was produced before the trial court. From the perusal of Ext-ka-11, the chemical examination report of Forensic Science Laboratory, Lucknow, it further transpires that no details of seal has been mentioned in this report. PW-1 S.I. Pankaj Kumar Gupta has stated in his cross examination that he had put his personal seal on sealed recovered contrabands and on its sample but no such seal was on record. PW-4 S.I. Brijesh Kumar Singh, in his examination, has stated that seal was put on recovered article but he did not know whether it was personal seal or it was official seal.
From the perusal of examination-in-chief of PW-1 Pankaj Kumar Gupta, it further transpires that the recovered article (Charas) was produced in sealed plastic bag (Bori) before trial court and the trial court observed that all the recovered articles were in damp and wet condition. According to PW-1 S.I. Pankaj Kumar Gupta, the recovered articles were sealed at the place of occurrence in white cloth. From the perusal of Ext-ka-1 seizure memo, it also transpires that the recovered articles along with bag of appellant were sealed in white cloth whereas before the trial court the said article/charas was produced as sealed in plastic bag. Thus the identity of recovered articles produced before the trial court is doubtful.
13.It is also pertinent to note that at this juncture that the recovery memo Ext-ka-1 was prepared in five pages contained in three papers. The last page was signed by the police personnel as well as the appellant and other co-accused persons but other four pages were neither signed by the police personnel nor the appellant or any other co-accused persons. The witnesses produced by the prosecution have also admitted this fact and thus alleged serious irregularity have been committed.
14. It is also pertinent to note at this juncture that according to PW-1 S.I. Pankaj Kumar Gupta, for weighing the recovered article, const. AsthabhujaTiwari was sent to bring electronic weighing machine. The prosecution has not examined constable Asthabhuja Tiwari who had brought the electronics weighing machine. PW-2 constable A.C.P Ramji Yadav in examination in chief regarding weight of recovered article has deposed as under:--
,l0vks0 lkgc us nqdku ls rjktw ckV fudkydj rkSykA pkjks yksxks ls dqy17 fd0 280 xzke pjl cjken gqvkA O;fDrxr :i ls fdl vfHk;qDr ds >ksys esa ls fdruh pjl fudyh eS ugh crk ldrkA In cross examination on this point he has further stated that :-
osok pkSjkgs ls fdlh nqdku ls rjktw ckV eaxkdj cjken eky dk rkSy djk;s dqy N ckV Fks] ftles ,d 1 fd0xzk0] 2 fd0 xzke] 500 xzke] 200 xzke] 100 xzke] 50 xzke ds ckV FksA fdl eqfYte ls fdrus ctu dk pjl cjken gqvk ;g ckr ;kn ugh gS A eqfytekuks ds ikl >ksys fdl&2 jax ds Fks ;g ;kn ugh gS A Thus, the statement of witnesses regarding the weight and method of weighing is contrary with each other because according to PW-1 Pankaj Kumar Gupta for weighing of the recovered article electronic machine was used whereas statement of PW-2 const. Ramji does not support the statement of PW-1 and according to this witness manual scale, kilogram and gram were used to weight the recovered article. This contradiction is very serious and makes the prosecution case itself highly doubtful.
15. So far as the submission of learned Amicus Curiae regarding availability of source of light is concerned, according to prosecution case the recovery memo was prepared in the light of torch and electric bulb but neither any torch was taken into custody by the Investigating Officer of this case nor it was produced before the trial court. PW-4 S.I. Brijesh Kumar Singh who is Investigating Officer of this case, in his cross examination has admitted that he had not prepared any seizure memo of any torch. Similarly PW-3 S.I. Daddan Singh who was another Investigating Officer of this case and prepared the site plan has also not stated regarding the availability of light at the place of occurrence. In site plan Ext-ka 5 no electric pole has been shown nearby the place of occurrence. Thus the prosecution has also failed to produce the reliable evidence regarding the source of light at the time and place of occurrence.
16. In addition to above, it is also pertinent to note at this juncture that according to prosecution case, the appellant, along with other three co-accused persons, was coming by UPSRTC bus and as soon as she got down from the bus along with other co-accused, she was caught but no traveling ticket was recovered either from her personal search or other three co-accused persons.
17. It is also pertinent to mention note at this juncture that the prosecution has not produced before the trial court the Malakhana Register from which it can be ascertained whether the recovered articles were kept in Malkhana of the concerned police station or not.
Hon'ble the Supreme Court in State of Rajasthana Vs. Gurmail Singh, AIR 2005 SC 1578 where Malkhana register was not produced before trial court to prove that the seized articles were kept in Malkhana, has held as under:-
"We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent."
18.Thus the alleged recovery of charas from the possession of appellant has been made in contravention of the mandatory provisions NDPS, Act. The presence of lady const. P.W-6 Vidya Singh at the place of occurrence, the evidence regarding weighing of recovered articles and source of light at the place of occurrence is very doubtful. In addition to it the identity of bag wherein the recovered articles were kept and sealed have also been found doubtful. The malkhana register was also not produced before the trial court .
19. Thus in the light of the above discussion, in my view the prosecution has failed to prove its case against the accused/appellant beyond reasonable doubt and the learned trial court has committed error in appreciating the evidence on record and convicting the accused/appellant. Hence, the impugned judgment and order is liable to be set aside and the appeal deserves to be allowed.
20. The appeal is hereby allowed and the impugned judgement and order dated 8.6.2017 passed by the learned Additional Sessions Judge/ Fast Track Court No.2, District Siddharthnagar, in S.T No.24 of 2011, State Vs. Smt. Kushum Devi, whereby the appellant has been convicted and sentenced, is hereby set aside.
21.The accused/appellant Kusum Devi is acquitted from the charge levelled against her. She is in jail. She shall be released from jail forthwith, if not wanted in any other criminal case.
22.The learned Amicus Curiae for the appellant Ms. Seema Pandey, shall be paid a sum of Rs. 5,500/-towards for effective aid and assistance rendered by her in disposal of the appeal.
23.Let a copy of this judgement along with lower court record be sent forthwith to the court concerned for necessary action and compliance.
24.However, the appellant is directed to execute the personal bond with surety as required by section 437-A Cr.P.C.
25.The seized contrabands article shall be disposed in accordance with law.
Order Date :-23 .1.2019(G.S)