Ram Charan @ Baura vs The State on 7 June, 2022

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Allahabad High Court

Ram Charan @ Baura vs The State on 7 June, 2022

2. This is a peculiar case wherein the appellant has been absconding for last about ten years and despite all coercive steps being taken his whereabouts is not traceable. The order-sheet shows that the C.J.M. concerned i.e. Chief Judicial Magistrate, Barabanki has taken coercive steps but to no avail. On account of aforesaid reason the aforesaid appeal which is of the year 2003 is pending consideration. Notably no one on behalf of appellant has been appearing for last several dates, however, AGA is appearing. The appeal was lastly listed on 26.4.2022 and again none appeared for the appellant nor any request for adjournment has been made. Therefore, having no other option, I am deciding this appeal perusing the material available on record and hearing the arguments of Sri Rajesh Kumar, learned AGA.

3. By means of present appeal filed under section 372(2) Cr.P.C. against the judgment and order dated 22.1.2003 passed by the learned Additional Sessions Judge, Court No. IV, District Barabanki in Session Trial No. 142 of 1999 and 200 of 2000 bearing Crime No. 129 of 1999, P.S. Mohammadpur Khala, District Barabanki u/s 8/21 N.D.P.S. Act and Crime No. 130 of 1999 u/s 25 Arms Act, P.S. Mohammadpur Khala, District Barabanki by which the appellant has been convicted 10 years Rigorous Imprisonment and fine of Rs. One Lac under section 8/21 N.D.P.S. Act and one year Rigorous Imprisonment under section 25 Arms Act and fine of Rs. 500/- and in default of the payment of fine two years as well as one months further Rigorous Imprisonment.

4. The accused appellant was granted bail by this Court on 2.9.2004.

5. Precisely, the conviction order has been assailed by the appellant on the ground that there is no corroborative evidence against the appellant except the witnesses statement who are police personnel and also the member of arresting party. Further, the mandatory compliance of section 50 of N.D.P.S. Act has not been adhered to. The joint recovery memo has been prepared by the police concerned relating to narcotic substances as well as the country-made pistol along with cartridges which is bad in law. There is no independent witness of the case. The chemical examination report has been obtained illegally from unauthorized laboratory. The prosecution failed to prove its case beyond all reasonable doubts. Provisions of section 42 and 57 N.D.P.S. Act as well as section 100 Cr.P.C. has not been followed. The order of learned trial court is perverse inasmuch as the findings so given by learned trial court are beyond the material available on record.

6. The facts briefly put, as per prosecution allegations that on the date of incident i.e. 21.8.1999, S.I. Anil Kumar Singh along with his fellow constables were coming back to the police station Mohammad Khala, District Barabanki from the official Jeep. They saw one man in a suspicious condition and when such team stopped that man, he ran from that place. The police chased and caught him at a distance of 30-35 steps with the help of other policemen at around 7.00 P.M. On asking the name of the arrested person, he told his name as Ramcharan alias Baura.

7. When police asked the reason for the running he told that he had some morphine and katta with cartridges, due to which he was running out of fear of being caught. Then he was told to give statement in front of a gazetted officer or a Magistrate, on that he told that since he has been caught, so he is ready to be searched by those police personnels.

8. After searching the accused, 500 gms of Morphine / brown sugar and katta- cartridges were recovered from him, then he was told that he would have to testify before the competent official or a Magistrate.

9. After that the accused was asked to show the license of Morphine and katta-cartridge, he failed to show any license for the same. Then the police put a seal on all those items and took thumb impression of the accused.

10. Recovered items e.g. brown sugar, katta and two live cartridges were sealed in plastic bag.

11. Thereafter the accused was produced before the Magistrate / Trial court. However, before the Magistrate the accused denied all the recoveries and stated that he had not given any statement and it is not his thumb impression on the seal. However, after through investigation it was established that it was his thumb impression.

12. I have perused the impugned conviction order. It is clear that before framing the charges the accused was given an opportunity and the learned trial court after considering the arguments on behalf of accused-appellant framed the charges u/s 8/21 N.D.P.S. Act bearing Case Crime No. 129 of 1999 and u/s 25 Arms Act bearing Case Crime No. 130 of 1999. Since accused denied the charges and requested for trial, then trial proceeded.

13. Since both the aforesaid criminal cases are connected to each other, therefore, joint trial bearing Criminal Trial No. 142 of 1999 was conducted.

14. The prosecution examined P.W. 1 Sharda Bux Singh, P.W. 2 S.I. T.C. Gautam, P.W. 3 complainant / informant S.I. Anil Kumar Singh, P.W. 4 Const. Jagdamba Singh, P.W. 5 Dr. Jairam Yadav. Besides, the documentary proof has been proved through aforesaid prosecution witnesses. All prosecution documents e.g. complaint, map (naksha najri) etc. have been allotted numbers.

15. All relied upon documents were made part of the trial e.g. the sample and the examination report of the contraband goods etc. The statement of the accused u/s 313 Cr.P.C. was recorded. In the said statement the accused has submitted that the recovery in question is false and the same has been planted by the police team for the reasons best known to them. Thereafter the accused appellant produced oral evidence of D.W. 1, Shiv Prasad but has not produced any documentary evidence.

16. Finally the learned trial court heard the arguments of the rival parties and perused the material / evidence i.e. oral and documentary available on record.

17. The learned trial court has given its finding that the accused could not explain his bonafide and could not justify the possession of the contraband goods i.e. 500 gms. of Morphine / Brown Sugar. He could also not explain about the country-made pistol being possessed by him. He had given his confessional statement admitting his guilt, therefore, the learned trial court convicted the appellant u/s 8/21, 10 years R.I. and fine of Rs. one lac u/s 8/21 N.D.P.S. Act and one years R.I. and fine of Rs. 500/- u/s 25 Arms Act and in default of the payment of fine two years as well as one month further R.I. on the aforesaid sections.

18. At this stage it would be apt to observe that the accused has committed an offence u/s 8 of N.D.P.S. Act inasmuch as the possession of contraband goods with the appellant was within his knowledge and he was also aware of the fact that such contraband goods are prohibited goods in terms of section 8 of the Act.

19. Likewise, section 21 of the Act clearly provides that whoever in contravention of provisions of this Act possesses any contraband goods shall be punished u/s 21 of the Act. This fact has been proved beyond all reasonable doubts that the present appellant was possessing such contraband goods being fully aware that possession of such goods is prohibited.

20. Since the appellant was told that he may be searched before the gazetted officer but he told that the police team who had apprehended him may search, therefore, there is no violation of section 50 of the N.D.P.S. Act.

21. The careful perusal of the conviction order reveals that such conviction order does not suffer from illegality inasmuch as the conviction order has been passed appreciating the arguments of the parties and all relevant material available on record.

22. Notably, the present case being a 'chance recovery', therefore, the compliance of section 42 of the N.D.P.S. Act would not be required. Section 42 defines power of entry, search, seizure and arrest without warrant and authorization.

23. In more or less similar circumstances the Apex Court in re: Ram Kumar vs. Central Bureau of Narcotics vide judgment and order dated 5.5.2008 in Criminal Appeal No. 800 of 2008 (Arising out of SLP (Crl.) No. 1434 of 2007) has held as under :

"4. The basic stand of the appellant in the appeal was that there was violation of the provisions of Sections 42 and 50 of the Act. It is submitted that there was also discrepancy in the evidence of the two witnesses about the manner of seizure of the alleged contraband articles.

6. It is to be noted that this is a case of a chance recovery and Section 42 has no application. It is the case of the prosecution as stated by Shri A.B. Acharya (PW-4) and Devilal Prajapati (PW-2) who were posted as Superintendent and Inspector of Narcotics Department at the relevant point of time that on 5.9.1997 they wanted to make casual Inspection. The driver and the conductor were duly informed. On inspection two persons sitting on the seats Nos. 1 and 2 were found suspicious and on being asked they disclosed their names as Aziz Khan and Ram Kumar respectively. Thereafter, they were given both options to be searched in terms of Section 50 of the Act and they consented for their search to be done before PW.4. Panchanama was prepared. During search 710 gms of brown sugar was recovered from the appellant which was kept inside the shoes and 800 gms. of brown sugar was recovered from Aziz Khan. On verification and analysis it was found that the seized substance was brown sugar. Statement of both the accused was recorded. The evidence of witnesses clearly established that it was a case of chance recovery in a public place effected during routine checking The contraband articles were recovered from the exclusive possession of the appellant and the co accused.

7. Apart from that, the appellant was examined under Section 67 of the Act in which he admitted the conscious possession of the contraband articles. There was no retraction to this voluntary confession. So far as the alleged discrepancies in the testimony of PW s 2 and 4 are concerned, we find that there are minor variations which do not in any way affect the credibility of evidence of these witnesses. The evidence clearly shows that prosecution has established the separation of samples, deposit of samples in the Malkhana, receipt of samples at the research laboratory and the examination by the experts. It is the evidence of Prajapati (PW-2) that during search of accused persons brown sugar was found inside the shoes. On being examined by UNO Kit it was identified as brown sugar. The samples which were duly sealed were sent to Neemuch factory for examination and on receipt of the report it was concluded that the articles were brown sugar."

24. The Hon'ble Apex Court in re: Union of India vs. Kuldeep Singh in Criminal Appeal No. 1468 of 2003 (Arising out of SLP (Crl.) No. 2827/2003) decided on 08.12.2003 has held in para nos. 14, 18 and 26 as under :

"14. The object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It, is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where It should be.

18. An offence relating to narcotic drugs or psychotropic substances is more heinous than a culpable homicide because the latter affects only an individual while the former affects and leaves its deleterious impact on the society, besides shattering the economy of the nation as well. That the legislature intended to make the offences under the Act so serious to be dealt with sternly and with an iron hand is made clear by providing for enhanced penalties, including even death sentence, in certain class of cases, when convicted for the second time.

26. As indicated supra, the discretion does not appear to have been judiciously and judicially exercised by the High Court in this case. When the volume of contraband articles is taken note of, it is sufficient for a conclusion that the quantity of finished product out of it which would have been extracted it would have been nearly 300 kilograms of heroine, and the accused would have got about forty kilograms as admitted by him. The disastrous effect (of this quantity of heroin) would be mind boggling. The High Court seems to have been swayed by the age of accused's father, his family problems and more importantly he being not a "habitual offender". Such considerations are really meaningless when one considers the fact, that the accused was in possession of contrabands which would have destroyed the health and mental equilibrium of thousands of people. The Court was not dealing with an accused charged with commies ion of any minor offence where he being not a habitual offender may have some relevance. But it is really inconsequential for a drug trafficker and smuggler. The reasons given by the High Court to reduce the sentence, according to us, have no foundation. The inevitable conclusion is that the appeal deserves to be allowed which we direct. To out it differently, the sentence imposed by the trial Court is restored. The respondent has been released pursuant to the High Court's judgment He shall surrender to custody to suffer remainder of the sentence as awarded by the trial Court. The appeal is allowed."

25. In a recent judgment in re: Kallu Khan vs. State of Rajasthan in Criminal Appeal No. 1605 of 2021 (Arising out of Special Leave Petition (Criminal) No. 8425 of 2021) decided on 11.12.2021 the Apex Court has again taken same view that the approach of the learned court below in a matter relating to the N.D.P.S. Act should be very strict and in such cases there should not be any scope of leniency. Para 16 of the judgment is being reproduced herein-below :

"16. The issue raised regarding conviction solely relying upon the testimony of police witnesses, without procuring any independent witness, recorded by the two courts, has also been dealt with by this Court in the case of Surinder Kumar (supra) holding that merely because independent witnesses were not examined, the conclusion could not be drawn that Accused was falsely implicated. Therefore, the said issue is also well-settled and in particular, looking to the facts of the present case, when the conduct of the Accused was found suspicious and a chance recovery from the vehicle used by him is made from public place and proved beyond reasonable doubt, the Appellant cannot avail any benefit on this issue. In our view, the concurrent findings of the courts does not call for interference."

26. Having regard to the fact that the goods recovered from the appellant were contraband goods; he was conscious about the fact that such goods is contraband goods; he could not justify the possession of such goods; and the required procedure as per N.D.P.S. Act has been followed inasmuch as he was told about his right to be searched before any gazetted officer but he agreed to be searched by the police team and the recovery in question was a chance recovery, I am of the considered opinion that the conviction order does not suffer from any illegality or perversity. Further, the appellant / accused could not justify the possession of country made pistol and cartridges. Therefore, the learned trial court has not committed any error in law while passing the impugned conviction order. The law is settled that unless there is any apparent error of law or procedure is found in the conviction order such order is not interfered with and I do not find any error of law in the passing conviction order and the conviction order has been passed considering all oral and documentary evidences as well as after hearing learned counsel for the parties.

27. Therefore, the present appeal fails and accordingly dismissed.

28. Since the appellant is not traceable for last couple of years, therefore, the copy of this order be provided to the Director General of Police, who shall direct his subordinate officers who is / are having such jurisdiction to find out the location of the accused-appellant and as soon as the accused-appellant is traced out, he shall be taken into custody at once and shall be sent to jail to serve his punishment in terms of conviction order dated 22.1.2003.

29. The progress report, in compliance of this order, shall be intimated by the Director General of Police, U.P. to the Senior Registrar of this Court within six weeks, say on or before 25th of July, 2022 and such report shall be kept in the file of the present appeal and shall be shown to the Court.

(Rajesh Singh Chauhan, J.) Order Date :- 7.6.2022 Om

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Allahabad High Court