Allahabad High Court
State Of U.P. vs Arshad And Others on 28 January, 2020
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 51 Case :- GOVERNMENT APPEAL No. - 4157 of 2003 Appellant :- State of U.P. Respondent :- Arshad And Others Counsel for Appellant :- G.A. Hon'ble Arvind Kumar Mishra-I,J.
Hon'ble Gautam Chowdhary,J.
1. We have heard the respective submission of learned counsel for the State appellants and perused the record.
2. The instant criminal appeal has been preferred by the State against the judgement and order dated 08.04.2003 passed in the concerned Case No. 321 of 2001 State Vs. Arshad in Case Crime No. 78 of 2001, under section 8/21 N.D.P.S. Act, P.S. Shivpur, District Varanasi and Sessions Trial No. 358 of 2001 State Vs. Arshad arising out of Case Crime No. 76 of 2001, under section 307 IPC, P.S. Shivpur, district Varanasi; Sessions Trial No. 359 of 2001 State Vs. Arshad arising out of Case Crime No. 77 of 2001, under section 25 Arms Act, P.S. Shivpur, District Varanasi in Case No. 322 of 2001 arising out of Case Crime No. 79 of 2001, under section 8/21 N.D.P.S. Act, P.S. Shivpur, District Varanasi whereby both the accused respondents Arshad and Ashraf @ Babloo have been exonerated of the charges under sections 307/34 IPC and section 21 N.D.P.S. Act, 1985, apart from the exoneration being recorded under section 25 Arms Act.
3. Contention is that in this case the lower court did not heed to the facts proved and the recovery of contraband was not properly considered by appraisal of facts viz-a-viz attendant circumstances and the evidence has been interpreted erroneously by the trial court. The prosecution witnesses have come out with specific story. However, the same has been discarded merely on the ground that the prosecution witnesses are the police personnel.
4. We have perused the certified copy of the judgement and order of the aforesaid case dated 08.04.2003 whereby the judgement of acquittal was passed.
5. We have carefully considered the entire incident as discernible from record. The main incident of recovery and arrest took place on 01.04.2001, on a tip off information received by the informant Ajit Kumar Singh at 2.45 A.M. and pursuant to that information two persons were apprehended around 3.00 P.M. on a motorcycle coming from the side of Shivpur bye-pass. On being asked to stop the vehicle, the two miscreants instead of stopping the vehicle fired on the police party, however, the police party saved itself. The police personnel surrounded the miscreants and apprehended them. On being asked about the name one told his name to be Ashraf @ Babloo and he claimed to be in possession of some contraband. The another told his name as Arshad, they were given option to be searched before a gazetted officer or a Magistrate whereupon they expressed confidence in the police party itself for being searched consequently, the accused were searched (of their person) by the police party itself. On search being made 100 gms. powder was recovered from the possession of each of the accused. The recovered powder appeared to be Heroin to the police party, therefore, it was properly sealed on the spot. The accused were told about the offence committed by them and they were taken into custody, they were taken to the police station where a case was registered under aforesaid sections of N.D.P.S. Act, IPC and Arms Act respectively.
6. The investigation was made and charge sheet filed. Prosecution produced its witnesses. P.W. 1 is constable Rakesh Tiwari. He has proved the factum of arrest and seizure being made from the two accused. Head Constable Kedar Singh is P.W. 2. He has recorded relevant entries in the concerned check FIR and other relevant papers. Constable Subhash Chandra, P.W. 3 has proved the factum of seized of contraband and the fact that after seizure sample was sent for chemical analysis to the forensic science laboratory and has proved the process. Sub Inspector Ajit Singh Chouhan P.W. 4 has proved the factum of arrest and seizure being made from the two accused on the day of occurrence i.e. 01.04.2001. Ram Ji Lal Srivastava is P.W. 5. He has proved the sanction obtained under Arms Act for prosecuting the accused and has proved it as Exhibit Ka-10. SI Prashant Kumar is P.W. 6, who is the Investigating Officer of this case.
7. Prosecution evidence was closed and statement of both the accused were recorded under section 313 Cr.P.C. wherein they claimed to have been falsely implicated in the incident on account of bearing criminal history, however, they denied any involvement in the incident.
8. The learned trial Judge after vetting the entire evidence and appraisal of the facts and circumstance of this case found that the case of the prosecution doubtful after taking note of specific testimony of the prosecution witnesses and the relevant provisions of the N.D.P.S. Act and considering the fact of non compliance of various mandatory provisions of the N.D.P.S. Act particularly section 57 of the N.D.P.S. Act found the incident doubtful not only under the relevant provisions of the N.D.P.S. Act but also the story of firing on the police party as set up by the prosecution was also found not correct and use of arms in the incident was rightly disbelieved.
9. A cumulative reading of the entire evidence, facts and the attendant circumstances of this case make out a case that the quality of the evidence is poor and the case of the prosecution is shaky on material points. Scrutiny of evidence was properly done and may be that other alternate view may emerge out but it is trite law that the view which favours the accused would be applicable. In this case the finding of acquittal recorded by the trial court need not be interfered by us.
10. We hereby affirm the findings of acquittal recorded vide judgment and order dated 08.04.2003 passed by the Special Judge (N.D.P.S. Act), Varanasi in the aforesaid four cases concerning the aforesaid four case crime numbers under various sections of the N.D.P.S. Act, IPC and Arms Act respectively.
10. Consequently this appeal lacks merit and the same is dismissed.
Order Date :- 28.1.2020 RPD