Allahabad High Court
Kamlesh Rai vs State Of U.P. on 24 November, 2000
Equivalent citations: 2001CRILJ1410
Author: S.K. Agarwal
Bench: S.K. Agarwal
JUDGMENT S.K. Agarwal, J.
1. This appeal arises out of a judgment and order dated 20-8-1999, passed by Sri S.K. Gaulam, 1 Additional Sessions Judge, Ghazipur, in Criminal Case No. 55 of 1991, convicting the appellant Under Sections 8/21 of the N.D.P.S. Act and sentencing him to undergo 10 years R.I. and to pay a fine of Rs. 1 lac. In dafault of payment of fine, the appellant was directed to undergo further 2 years R.I.
2. The brief of the case, according to F.I.R., are that the S.S.I. Shesh Nath Mishra while on petrol duty on 7-1-1991 reached the barrier, there he was met by S.I. Vachaspati Mishra and other police personnel. At that very time he received an information from an informer that a person would approach on foot the road for the side of village Baresar possession Heroin and would proceed towards Qasba Jamanlya Railway Station Bazar. He could be arrested if the police party takes immediate steps. The statement of the informer was recorded on a sheet of paper and the police party headed by S.S.I. Shesh Nath Mishra proceeded towards the road on which that person was to come. Two persons Guddu son of Najju Mlyan, resident of Patkholivan. P.S. Jamaniya, and Shree Ram Sharma son of Ganesh Sharma, resident of Baresar, P.S. Jamaniya, district Ghazipur, were also taken by the police party as public witnesses before embarking upon the arrest of the appellant. They reached near a Gumti (roadside wooden shop) at 5.00 P.M. and hid themselves behind the same. After waiting for about half an hour, they saw a person approaching on foot. As soon as he reached in front of the Gumti, the informer pointed towards him. He was challenged by the police party. The appellant allegedly started to run back towards north. After a chase for about 15-20 steps, he was taken into custody near the culvert at about 5.30 P.M. On enquiry, he disclosed his name to be Kamlesh Rai. He also gave out his parentage and the residence. On being told by the police party that they had information of Heroin in his possession and his search is to be taken in this connection. He was further told that he could give his search to any Magistrate or any Gazetted Officer. The appellant allegedly told the police party to take his search itself. The search was conducted and from his shirts' left side chest pocket 5 gins, of Heroin was recovered. The pocket was cut off along with the packet in which Heroin was contained. After taking out 1 gm. each from the recovered Heroin it was sealed in two separate packets of plastic sheets. Rest of the Heroin was sealed separately in another packet. The specimen was prepared. He was brought to the police station along with the recovered narcotic article and was lodged in the lock-up. The recovery memo was also prepared at the spot. His signatures were obtained on the recovery memo also. After investigation by P.W. 6 S.I.J.P. Saroj a charge-sheet was submitted against the appellant.
3. The prosecution in support of its case has examined S.S.I. Shesh Nath Mishra as P.W. 1, Mohd. Gaffar as P.W. 2, Constable Ramashrey Singh as P.W. 3, Constable Nand Kishore as P.W. 4, Head Constable Sheshmani Misra as P.W, 5, and S.I.J.P. Singh as P.W. 6. Out of these persons P.Ws 1, 2 and 3 are the witnesses of fact, P.W. 4 is the Constable who had carried the sample phial for chemical examination. P.W. 5 is the Head Moharir who had completed all the formalities pertaining to registration of the case. P.W. 6 is the Investigating Officer. He was posted at. the same police station as a subordinate official to S.S.I. Shesh Nath Mishra, who was Incharge S.H.O. of the concerned police station on the date of incident.
4. From a perusal of the statement of P.W. 1 S.S.I. Shesh Nath Mishra it can safely be gathered that the police personnel had not conducted any search of their person before effecting arrest and search of the appellant. It is also available from his state-merit that the paper Ext. Ka-1 was prepared recording the statement of the informer regarding possession of Heroin by the appellant. This would have been proper it" the police party was positively on petrol duty, but an examination of the statement of P.W. 3 Ramashrey Singh shows that the informer conveyed the information to the police party when it was present at the police out-post. It is common knowledge that every police out-post has a General Diary (in short as' G.D.') of its own. It is beyond comprehension as to why no information received from the informer was entered into G.D. of the police out-post and why a separate sheet at the police out-post, according to the statement of P.W. 3, was prepared by P.W. 1. The statement of these two witnesses run contrary to each other. According to P.W. 3 the police party was present at the police outpost, whereas according to P.W. 1 they were on the way and were on petrol duty when the information was received. It is not easy to reconcile these two contradictory statements made by P.Ws 1 and 3 and as such the accused is entitled to the benefit of this conflict.
5. It is admitted to P.W. 6 S.I.J.P. Saroj, who was the I.O., that the place where the arrest and recovery were effected was a public thoroughfare. The probability of local people present at. this public thoroughfare cannot be easily brushed aside. In the circumstance why only two persons, Guddu and P.W. 2 Mohd. Gaffar, were picked up as a public witness by the police is difficult to digest. The sealed packet prepared after recovery did not bear the signatures of the appellant. His signatures, admittedly, were obtained only on the recovery memo. This is also an important circumstance going against the prosecution. P.W. 1 has admitted clearly that he cannot say whether the entry regarding the memo Ext. Ka-1, was made in the G.D. or not. Then he stated that in G.D., regarding registration of the case, there is a reference about the statement of the informer. In my opinion, this is the exact word as stated by the informer, but is only a reference to the informer only. He has also admitted that he had sent the information regarding arrest, search and recovery to the S.P. He had admitted that there is no mention any where regarding the time when this information was received by him. He had further admitted that, he had not made any report to any senior officer that the investigation of this case may be entrusted to some other Inspector or other official. During remand no signatures of any Magistrate were obtained on the case property or sample phial, although he stated that the Magistrate had examined the recovered property but had not made any mention of the fact in his order. He further stated that the case property was produced at the time of remand. He further stated that on 11-1-1991 the sample was also mixed with the reminder part of the case property. He is probably referring to the second part of the two samples that were prepared containing 1 gm. each. Why had it been done is beyond comprehension. The accused has a right to send the second sample prepared by the arresting officer for analysis. According to him the sample of Heroin to be sent to the chemical examiner was brought to the court by the C.O. This fact is not borne out from the statement of P.W. 4, who had carried the article to the chemical examiner. According to him that property was taken to the Magistrate by him. He had denied having his hand in the investigation of the case. He has admitted that he has not made any mention of the fact that the police personnel and the public witnesses had given their searches to each other. This fact is also not mentioned in his 161 Cr.P.C. statement made to the I.O.
6. P.W, 2 Mohd. Gaffar alias Guddu, the solitary public witness examined in the case, had turned hostile and denied any recovery of Heroin from the possession of the appellant. He was cross-examined by the prosecution and in his examination he had denied his statement Under Section 161, Cr.P.C. He admitted, no-doubt, that while signing the recovery memo the appellant was also present at the police station. This fact looses all its bearing in the face of the admission of his presence made by the appellant, but the appellant has set up a case that he was forced to sign by the Inspector at the police station, his further case is that he is running a Vedio cinema show. He had licence for the same. The police personnel desired to see the cinema free of cost. He was not permitting them to do so. Therefore, to teach him a lesson he was roped in the case falsely. No-doubt, the defence has not been suggested to the two police witnesses, P.W. 1 Shesh Nath Mishra and P.W. 3 Ramashrey Singh, yet it cannot be brushed aside lightly.
7. As earlier discussed, the statement of P.W. 3 that they had given their mutual search is belied by the fact that these facts were not mention either in the F.I.R. or recovery memo or their statements Under Section 161, Cr.P.C. Moreover, P.W. 1 Shesh Nath Mishra had not stated either in exami-nation-in-chief or in cross-examination that any copy of the fard recovery was given to the appellant but this witness had tried to fill in this lacuna. The evidence does not suggest that any copy of the recovery memo was given to the appellant. He had denied that they had not signed the sealed bundles whereas P.W. 1 has stated that the signatures of the witnesses and the appellant were obtained on sealed bundles. He has admitted that the office of the C.O. is in front of the police station and the C.O. lives is Qasba Jamaniya itself. Still it is not proved as to why no information of the arrest and the recovery was made to him by P.W. 1. He had stated that he cannot say whether the signatures of the C.O. were obtained on these packets or not because after the arrest and seizure he had returned back to his police out-post. He had further admitted that in the month of January the Sun used to set by 5.30 P.M. The arrest in this case was effected at 5.30 P.M. and papers were said to have been prepared at the spot. Preparation of the papers and other formalities including the seizure and sealing of the recovered Heroin in three different packets must have taken some time. In the darkness it is wholly improbable. None of these witnesses have asserted presence of any light in their statements at the spot.
8. Now corning to the compliance of Section 50 of N.D.P.S. Act, which is a very important safeguard provided by the framers of this Act to an accused. What I find is that in the F.I.R. it had been stated that the appellant was told that he could give his search to a Magistrate or a Gazetted Officer, upon which the appellant had told them to take his search themselves. Whereas in the statements in court both these witnesses (P.Ws 1 and 3) had stated that P.W. 1 had told the appellant that will he like to give his serach before a Magistrate or a Gazetted Officer then he told them that they could take his search. The requirement of law is that if the offender arrested for a charge of possessing any narcotic or psychotropic substance "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." It lays down an obligation upon the person who is conducting search for the purpose of recovery of any contraband article to inform him in an unambiguous term about this right. This is to be done before the impending search is undertaken. It clearly means that the police personnel have to make the accused understand the requirement of this section in clear and unambiguous language. It must not contain any ifs and but's. This is the requirement of law. The law requires that the accused should be clearly asked in a language which is not open to any other interpretation than the one that whether he would give his search before a Magistrate or a Gazetted Officer, which is his right. If he declines to do so only then the police party is entitled to effect the search and make the arrest. Here the language used in the substantive, evidence given in court indicates somewhat a dubious conduct on the part of the police, official. This has been done, in my opinion, in all probability, in order to save their own skin. The facts and circumstances of the case revealed that the search and the arrest was made first and in order to cover up their mis-deed it has been introduced as a device to safeguard their illegal action. Why no signatures of the appellant were obtained on the container find why no copy of the recovery memo was given to him ? It fortifies the above conclusion.
9. The fact that after the order for sending the sample to chemical examiner was passed the property was brought to the police station is also not understandable. Why was this property, after the Magistrate had passed the order, was not taken straight to the chemical examiner and why was it deposited back in the Malkhana and taken out on the next day is surprising. It smells of some foul play. There is conflict regarding who presented it before the Magistrate.
10. In the result, in view of the discussions made above, in my opinion, this appeal deserves to succeed. It is accordingly allowed and the judgment and order dated 20-8-1999, referred to above, passed by the trial court is set aside. The appellant is acquitted of the offence Under Sections 8/21 of the N.D.P.S. Act for which he was convicted and sentenced by the trial court. He is in jail. He shall be set at liberty forthwith, if not wanted otherwise in any other case.