Allahabad High Court
Mohammad School vs State Of U.P. on 2 March, 2022
Author: Mohd. Aslam
Bench: Mohd. Aslam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on: 20.7.2021 Delivered on: 2.3.2022 Court No.-88 Case :- CRIMINAL APPEAL No. - 3930 of 2016 Appellant :- Mohammad School Respondent :- State of U.P. Counsel for Appellant :- Syed Irfan Ali,Beena Mishra,Mohd. Naushad,Praveen Kumar Srivastava,Vijay Prakash Chaturvedi Counsel for Respondent :- Govt. Advocate Hon'ble Mohd. Aslam, J.
1. Heard learned counsel for the accused-appellant, learned A.G.A. for the State and perused the record.
2. The instant appeal has been filed by accused-appellant under Section 374(2) of Cr.P.C. against the impugned judgement of conviction and order of sentence dated 29.4.2013 passed by Additional Sessions Judge (ECP), Siddharth Nagar in Special Case No.9 of 2011 (State Vs. Mohd. School), arising out of Case Crime No.11 of 2011, under Section 8/20 of NDPS Act, Police Station- Shohratgarh, District Siddharth Nagar, by which the accused-appellant was convicted under Section 20(b)(ii)(C) of NDPS Act, 1985 and was sentenced to undergo rigorous imprisonment for a period of 10 years with a fine of Rs.1,00,000/-, in default thereof, to further undergo imprisonment for two years.
3. The brief facts of the prosecution case are that PW-1 S.I. Dinesh Kumar Yadav, In-charge SOG along with his companion police personnels was busy in patrolling duty near Nepal border for taking care of the area and for preventing of smuggling by a Government Specio Jeep No.UP55-G-0030 and on the way he took along with him S.I. Ram Samujh Prabhakar and Ct. Shriram Sharma from the police booth Shohratgarh. As soon as they reached near the north of grove in Village Dhanaura Mustahkam, they saw a person in the light of Jeep coming from Nepal side with a bag and suddenly he started hiding himself in the grove to avoid the light of vehicle. On suspicion, he was apprehended with the help of his companion personnel. On being asked the reason of hiding, he told that he is having narcotic substance 'Charas' and told his name as Mohammad School. He was informed that it is his legal right to be searched before Magistrate or Gazetted Officer, thereupon, he stated that he may be searched by him and given his consent for being searched after execution of consent letter Ex.Ka-1. The yellow plastic bag which was in his right hand, was searched and from it four packets of beige coloured plastic on which J.O.R. was written and two packets of yellow plastic were recovered. On tearing the packets, Charas was found and on being weighed by the scale kept in vehicle, it was found to be 5 Kg and 150 gm along with plastic packet. In respect of authorisation for keeping Charas, he could not show any authorization letter. Thereafter, he was told that his act is punishable under Section 8/20 of NDPS Act and was taken in police custody on 4.1.2011 at 19:50 p.m. He was arrested and the arrest memo was prepared Ex.Ka-2. After keeping the recovered narcotic substance Charas in the same bag, it was stitched and was sealed and the sample seal was prepared. On enquiry, it was also told by the accused-appellant that the said Charas was given to him by Thapa at Nepal Taulihwa Border. He has also told that a year ago, he was escaped by digging tunnel from Taulihwa Jail from Nepal along with eight more prisoners. Recovery memo of Charas was ascribed by S.I. Ram Samujh Prabhakar (PW-2) on dictation of S.I. Dinesh Kumar Yadav, which was read and explained to accused-appellant and police perssonels. Thereupon, all police personnels put their signatures on recovery memo (Ex.Ka-3) as witness. The information regarding arrest of accused-appellant was given to the family member of the accused-appellant. He was taken to the police station Shohratgarh and was handed over along with contraband and recovery memo to H.C.P. Dharambir Shahi at 20:30 p.m. On 4.1.2011, H.C.P. Dharambir Shahi has ascribed the Check Report (Ex.Ka-9) at 22:30 p.m. at Police Station Shohratgarh and after making necessary entry in GD (Ex.Ka-10) vide report No.48 , the case was registered as Case Crime No.11 of 2011, under Section 8/20 of NDPS Act and the contraband was kept in the Malkhana after making necessary entry in Malkhana Register (Ex.Ka-6).
4. The investigation of the case was undertaken by S.O./S.I. Anoop Kumar Shukla (PW-5). He copied the check report and GD entry in the case diary. He also copied the consent letter signed by accused-appellant and recorded the statement of informant S.I. Dinesh Kumar Yadav and inspected the place of occurrence and prepared site plan Ex.Ka-7 at the pointing out of S.I. Dinesh Kumar Yadav. The entire contraband recovered from the accused-appellant was sent to Forensic Science Laboratory, Lucknow along with sample seal and docket Ex.Ka-4 by Ct. Babban Singh (PW-3) and entry in this respect was made in Case Diary on 16.1.2011 (Ex.Ka-5). Contraband was received on 17.1.2011 at Forensic Science Laboratory, Lucknow at Sl. No. 347. On physical and chemical analysis vide report dated 17.1.2011 Ex.Ka-11, the contraband was found to be Charas. He recorded the statements of accompanying police personnels as witnesses of recovery and after completing the investigation, the charge-sheet (Ex.Ka-8) was submitted against the accused-appellant Mohd. School.
5. The cognizance of offence punishable under Section 8/20 NDPS Act was taken by the then learned Sessions Judge, Siddharth Nagar on 30.3.2011 against the accused-appellant and the copies of police papers were given to the accused-appellant in compliance of Section 207 Cr.P.C. After hearing learned counsel for the parties, charge of the offence punishable under Section 20(b)(ii)(C) of NDPS Act was framed against the accused-appellant to which he has pleaded not guilty and claimed to be tried.
6. In order to prove its case, prosecution has examined informant SI Dinesh Kumar Yadav as PW-1 and S.I. Ram Samujh Prabhakar as PW-2 to prove factum of recovery of contraband, recovery memo Ex.Ka-3, consent letter Ex.Ka-1 and memo of arrest Ex.Ka-2. Prosecution has also examined Ct. Babban Singh as PW-3 to prove carrying of contraband along with sample seal and docket Ex.Ka-4, safe custody and entry of GD Ex.Ka-5. Prosecution has also examined Ct. Ram Agya Prasad as PW-4 to prove the safe custody of the contraband at police station and its entry in Malkhana Register Ex.Ka-6. Prosecution has also examined I.O./S.I. Anil Kumar as PW-5 to prove site plan Ex.Ka-7, charge-sheet Ex.Ka-8 and step taken in investigation. He proved by secondary evidence the check report Ex.Ka-9 and GD entry registering the case Ex.Ka-10. The report of Forensic Science Laboratory Ex.Ka-11 was also tendered by prosecution.
7. The statement of the accused-appellant under Section 313 of Cr.P.C. was recorded by learned court below, wherein he has stated that the witnesses are deposing falsely against him. Regarding deposition of Ram Agya Prasad (PW-4) relating to entry made by him in Malkhana Register, the accused-appellant has stated that false entry was made in the Malkhana Register. With regard to the Investigation, he stated that fake charge-sheet was filed by conducting fictitious investigation against him. It is stated that he was picked up from Sukrauli Bazar by police in presence of public and was kept there for two days and had taken his mobile and cycle. Thereafter, he was sent to police station Siddharth Nagar, where he was kept for four days and thereafter, he was taken to the police station Jogiya where he was kept for 22 days. After that by planting false recovery, he was booked in this case. The accused-appellant has not examined any witness in his defence.
8. After hearing learned counsel for the parties and appreciating the evidence on record, learned court below has held that the testimonies of the prosecution witnesses are liable to be relied on and it is proved beyond reasonable doubt that on 4.1.2011 at 19:50 p.m. in the grove in the north of Village Dhanaura Mustahkam 5 Kg and 150 gm of Nepali Charas was recovered from the accused-appellant for which he has no authorization letter and convicted him for offence punishable under Section 20(b)(ii)(C) of NDPS Act and sentenced him to undergo rigorous imprisonment for 10 years with a fine of Rs.1,00,000/-, in default thereof, to further undergo imprisonment for two years by impugned judgement of conviction and order of sentence. Feeling aggrieved by it, the instant appeal has been preferred by the accused-appellant Mohd. School.
9. It is contended by learned counsel for the accused-appellant that recovery memo does not bear the signature of the witnesses of the recovery. It is further contended that no independent witness was made by the police party to join the search of the accused-appellant, therefore, the recovery is doubtful. It is further contended that accused-appellant has not signed on the consent letter and his signature on recovery memo does not match with his signature on consent letter. It is further contended that on the recovery memo there is over writing on number 20 of 8/20 NDPS Act as earlier it was written as 8/22 NDPS Act which indicates that recovery memo is fabricated and doubtful. It is further contended that before search procedure the provision of Section 50 of NDPS Act was not followed. It is further contended that the sample seal, by which the contraband was sealed at the time of recovery, was not produced before the court below, therefore, it is not proved that the contraband, which is alleged to have been recovered from the accused-appellant, was produced before the court below and on this ground alone the accused-appellant is entitled for taking the advantage of acquittal. He relied on the law laid-down by Hon'ble High Court Allahabad in "Mohammad Mustafa Vs. State of U.P. MANU/UP/0220/2014". It is further submitted that the impugned judgement of conviction and order of sentence dated 29.4.2013 passed by learned court below is against law and is liable to be set aside. It is further contended that the sentence awarded to the accused-appellant is too severe and excessive. It is further contended that the accused-appellant has neither committed the alleged offence nor the charges have been proved against him beyond reasonable doubt, and therefore, the court below has committed manifest error and illegality in convicting and sentencing the accused-appellant in the present case. It is further contended that the prosecution has failed to prove its case beyond reasonable doubt. It is further contended that there are so many doubts and suspicion regarding the alleged recovery of the contraband from the accused-appellant, therefore, the benefit of doubt might have been extended in favour of the accused-appellant by the learned court below. It is further contended that police has prepared a forged and fabricated consent letter by putting a forged signature of the accused-appellant because the accused-appellant has not signed the consent letter. It is further contended that from the recovery memo it transpires that nothing was recovered from his personal search except alleged recovery of contraband from the bag which is alleged to have in his right hand. It is further contended that the case against accused-appellant was not proved beyond doubt and the impugned judgement of conviction and order of the sentence passed by learned court below is liable to be set aside and accused-appellant is liable to be acquitted.
10. Learned A.G.A. for the State has opposed the arguments advanced by the learned counsel for accused-appellant and has contended that the recovery of contraband from the possession of the accused-appellant is proved from the statements of S.I. Dinesh Yadav (PW-1) and Ram Samujh Prabhakar (PW-2). It is further contended that from the statement of PW-1 it is proved that the recovery memo was prepared on the spot on his dictation to S.I. Ram Samujh Prabhakar (PW-2) and was witnessed by companion police personnels. It is further contended that the safe custody of keeping the contraband after entering in the Malkhana Register is proved by the statement of Ct. Ram Agya Prasad (PW-4). He had also proved the extract of Malkhana Register Ex.Ka-6. It is further proved from the statement of Ct. Babban Singh (PW-3) that he had brought the contraband along with docket Ex.Ka-5 to the Forensic Science Laboratory for its chemical analysis. It is further contended that he has also proved the entry of GD dated 16.1.2011, by which the contraband was taken out from the Malkhana and brought to Forensic Science Laboratory. It is also contended that on physical and chemical examination of the contraband was found to be Charas which is a narcotic substance. It is further contended that the accused-appellant was apprehended all of sudden with a bag containing the contraband in his right hand, therefore, there was no necessity for compliance of Section 50 of NDPS Act. It is further contended that the accused-appellant was searched after giving his consent by signing the consent letter stating therein that he does not want to be searched before Magistrate or Gazetted Officer and he has trust upon the informant and wants to be searched by him. It is further contended that after drawing proforma of the consent, the accused-appellant has signed on it, thereafter he was searched. He has further contended that the accused-appellant has deliberately missed ''0' in between 'Mo' and 'School' on the consent letter so that he may create false defence. It is further contended that the contraband was recovered from the accused-appellant in the lonely place so no independent witness was available to join the search. It is further contended that the recovery of the contraband is corroborated by the testimony of SI Ram Samujh Prabhakar (PW-2). It is further contended that the contraband was produced by S.I. Dinesh Kumar Yadav (PW-2) in the court and got it exhibited as material exhibit. It is further contended that the safe custody of the contraband in Malkhana of the police is proved by the prosecution as well as sending the contraband to Forensic Science Laboratory is also proved by the prosecution. It is further submitted that learned court below has rightly held the accused-appellant guilty and convicted and sentenced him in accordance with law. It is further contended that the minimum sentence prescribed by law was awarded to the accused-appellant. It is further contended that the judgement of conviction and order of sentence passed by court below suffers from no illegality, therefore, the appeal is liable to be dismissed.
11. I have given thoughtful consideration to the contentions raised by learned counsel for the parties and have gone through the record. After considering the submission of learned counsel for the parties and perusing the lower court record as well as the record of appeal, the following questions are necessary to be determined for deciding this appeal:-
(i) Wheather the 'Charas' which is alleged to have been recovered from the accused-appellant has been falsely planted by the police officer and accompanying police personnels upon the accused-appellant and the signature of the accused-appellant on the consent letter was forged by the police personnels?
(ii) Whether the compliance of Section 50 of NDPS Act is needed and if it is so whether the compliance of Section 50 of NDPS Act has been made?
(iii) Whether the signature of the accused-appellant on the consent letter Ex.Ka-1 is forged?
12. In this case S.I. Dinesh Kumar Yadav (PW-1) in his testimony has stated that on 4.1.2011, he was posted as Incharge of SOG at Siddharth Nagar and was going towords the border of Nepal on patrolling duty for taking care of his area by Government Spacio Jeep No.UP50-G-0030 along with his companion Ct. Ravindra Mohan Pandey and Ct. Panna Lal for prevention of smuggling and on the way he took along with him S.I. Ram Samujh Prabhakar and Ct. Shriram from police Booth Shohratgarh. When they reached near the north of the grove of Village Dhanaura Mustahkam, in the light of the vehicle they saw a person with a bag in his hand coming from the side of Nepal, who started hiding himself in the grove to avoid the light of the vehicle. On being suspicious, he was apprehended from the grove with the help of his companion police personnels and on being asked his name and address as well as the reason of hiding himself, he disclosed his name as Mohd. School son of Rahmatullah resident of Baldia Chilha Bazar, Police Station- Chiliha, District- Siddharth Nagar and also told that he was having narcotic substance 'Charas' and that is why he was hiding himself from the light. When the police personnels came to know that he is possessing 'Charas'. S.I. Dinesh Yadav informed his right of personal search before the competent Magistrate or Gazetted Officer, thereupon, he desired to be searched by them. Thereafter, the police party searched each other and on being satisfied that no one has any objectionable thing, he drew written consent of Mohd. School and he put his signature on it. After execution of consent letter Ex.Ka-1, he searched the bag which was in his hand and inside the bag four packets of Beige coloured plastic packets and two packets of yellow colour were recovered and being opened 'Charas' was found wrapped in white polythene in each packet and on weighing from scale it was found 5 Kg and 150 gm Charas. Thereafter, accused-appellant Mohd. School was arrested after informing him the grounds of arrest that his act is punishable under Section 8/20 of NDPS Act at 19:50 p.m. Thereafter, recovery memo was prepared by S.I. Ram Samujh Prabhakar on his dictation and the recovery memo was signed by the police party. The copy of the same was given to the accused-appellant and the packets were again kept in the bag and sealed it and prepared sample seal, recovery memo Ex.Ka-3. He further deposed that before arrest the arrest memo Ex.Ka-2 was prepared and he proved the consent letter, recovery memo and arrest memo. He further deposed that the accused-appellant along with contraband and recovery memo was brought to the police stations Shohratgarh and the contraband was handed over to Constable/Clerk who deposited the contraband in police Malkhana after making necessary entry in Malkhana Register and registered the case against accused-appellant and lodged into the lock up. S.I. Dinesh Yadav (PW-1) has deposed and proved the contraband article in the court and got exhibited as material exhibit. The contraband article and the sealed bag related to this case was produced by Ct. Ram Agya Prasad from Malkhana Police Station- Shohratgarh in sealed condition to which the case was registered under Section 8/20 of NDPS Act, Police Station- Shohratgarh, District Siddharth Nagar, was written and having signature in English which is illegible and he stated and identified the handwriting as well as signature of S.I. Ram Samujh. On opening the sealed packet before the court, four packets were found beige coloured plastic and two packets in yellow plastic from the bag. Individually each of the six packets, it was found written as 178 -C-111. The cylindrical rod shaped charas was found wrapped in golden and white plastic foil in each packet. Witness S.I. Dinesh Kumar has deposed that these contraband articles were recovered from the bag possessing by accused-appellant in his right hand at the time of search. From which one yellow packing in which two packets of Charas was found, one is found in white packing and material containing charas as Material Ex.-1, and other in yellow colour packing containing Charas Material Ex.-2 and yellow packing in which the above two packets were found was exhibited as Material Ex.-3. Likewise, in beige packet in which four packets of Charas wrapped in golden plastic foil charas as Material Ex.4, packet of Charas as Material Ex.-5, beige packet Charas as Material Ex.-6, and black packet charas as Material Ex.-7 were produced in the court and got exhibited. He also deposed that the seal on the bag was found intact at the time of producing it before the court.
13. Witness S.I. Dinesh Kumar Yadav was cross-examined whereby he has admitted that the sample seal by which the bag containing contraband was sealed was not available before the court. He has further stated on oath that prior to this case he has not sent the entire recovered contraband for testing to Forensic Science Laboratory. He has further deposed that he could not remember that there was no public way adjacent to the place of occurrence. It is further deposed by him that each packet of Charas which he has produced in the court was opened from corners at the time of production before the court when the sealed packet was opened. He has further deposed that he does not know that who had opened the packets. He has also stated that the packets of Charas are not in sealed condition. He has denied the suggestion of the counsel for accused-appellant that Charas was not recovered from the accused-appellant Mohd. School. He has also denied the suggestion that Mohd. School has been falsely implicated in this case and no recovery has been made from him. At this point, it is relevant to refer the statement of the accused-appellant recorded under Section 313 of Cr.P.C. the purpose of which is elucidated by Hon'ble Apex Court in the case of "Mohan Singh Vs. Prem Singh AIR 2002 SC 3582" are as under:-
"......The statement of accused under Section 313 Cr.P.C. is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the persecution. As held in the case of Nishi Kant (supra) by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 Cr.P.C. cannot be made the sole basis of his conviction."
14. The Hon'ble Supreme Court in the case of "Dehal Singh Vs. State of Himachal Pradesh (2010) 9 SCC 85" has observed as under:-
"......We do not find any substance in this submission of Mr. Mishra. Statement under section 313 of the code of criminal procedure is taken into consideration to appreciate the truthfullness or otherwise of the case of prosecution and it is not an evidence. Statement of an accused under section 313 of the code of criminal procedure is recorded without administering oath and therefore said statement cannot be treated as evidence within the meaning of section 3 of the Evidence Act. Appellants have not chosen to examine any other witness to support this plea and in case none was available they were free to examine themselves in terms of section 315 of the Code of Criminal Procedure which, inter-alia provides that a person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement under section 313 of the code of criminal procedure as evidence as the accused cannot be cross-examined, with reference to those statements. However, when an accused appears as witness in defence to disproof the charge, his version can be tested by his cross-examination. Therefore, in our opinion the plea of the appellant Dinesh Kumar that he had taken lift in the car is not fit to be accepted only on the basis of the statements of the appellants under section 313 of the Code of Criminal Procedure."
15. The Hon'ble Apex Court in the case of "State of MP Vs. Ramesh (2011) 4 SCC 784" has held as under:-
"......Statement of the accused made under section 313 Cr.P.C. can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined, his statement so recorded under section 313 Cr.P.C. cannot be treated to be evidence within the meaning of section 3 of Indian Evidence Act 1872. Section 315 CRPC enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is true required."
16. The Hon'ble Supreme Court in the case of "Dharanidhar Vs. State of UP (2010) 7 SCC 759" has held as under:-
".....The proper methodology to be adopted by the court while recording the statement of accused under section 313 CRPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused state before the Court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail of that opportunity and if he fails to do so then it is for the court to examine the case of prosecution on its evidence with reference to the statement made by the accused under section 313 CRPC."
17. The statement of the accused-appellant under Section 313 Cr.P.C. was recorded, wherein he has stated that the witnesses have given false testimony against him. Regarding deposition of Ram Agya Prasad (PW-4) with respect to entry made by him in Malkhana Register, he has stated that the false entry was made in the Malkhana Register. With regard to the investigation, he has stated that fake charge-sheet has been prepared by fictitious investigation. He has further stated that he was taken away from Sukrauli Bazar by police of police station Mohana in presence of public and was kept there for two days and his mobile and cycle was taken in police custody. Thereafter, he was sent to the police station of Siddharth Nagar, where he was kept for four days and was taken to police station Jogiya, where he was kept for 22 days. After that by showing false recovery, he was booked in this case. But in cross-examination nothing was asked from the witnesses S.I. Dinesh Yadav (PW-1) and S.I. Ram Samujh (PW-2) regarding his arrest from the Sukrauli Bazar openly and keeping him in different police station for 22 days, and thereafter, he was booked in this case. From the law laid down by Hon'ble Apex Court as discussed above, it is quite evident that a statement given by the accused-appellant under Section 313 Cr.P.C. can be taken into the consideration for appreciating the evidence of the prosecution with reference to the statement made under Section 313 Cr.P.C. The statement of that accused-appellant made under Section 313 Cr.P.C. can be taken into consideration to appreciate the truthfullness or otherwise of the prosecution case. The statement of the accused-appellant under Section 313 Cr.P.C. is not a substantive piece of evidence. It can be used for appreciating evidence lead by the prosecution to accept or reject it. Witnesses of the recovery, S.I. Dinesh Yadav (PW-1) and S.I. Ram Samujh Prabhakar (PW-2) were cross- examined by learned counsel for the accused-appellant in the lower court in reference to the statement given by accused under Section 313 of Cr.P.C., which lead assurance that the recovery of the Charas as alleged by them is truthful and reliable and inspires confidence.
18. In this regard, it is also pertinent to mention that S.I. Ram Samujh (PW-2) in his statement before the court has stated that on 4.1.2011, he was posted at Police Station- Shohratgarh. He has further stated that on that day he was present near the Police Booth Shohratgarh at about 07:00 p.m. in connection with law and order duty along with Ct. Shriram Sharma Ram. Meanwhile, S.I. Dinesh Yadav SOG incharge arrived there in company with Ct. Panna Lal Yadav, Ct. Ravindra Mohan Pandey with Government Jeep and all of them proceeded for taking care of his area and for prevention of smuggling and as soon as they reached near the north grove of the village Mustahkam, in light of the Jeep, a person was found coming from Nepal side with a bag in hand, he started hiding himself to avoid the light of Jeep. On being suspicion, he was stopped by companion police personnels in the grove and on being asked the name and address and also the reason of hiding himself, he became stunned. Again on being asked for reason of hiding by applying tactics, he told his name as Mohd. School son of late Rahmatullah resident of Chilha and told that he is in possession of narcotics. He was told that he has right to be searched before competent Magistrate or Gazetted Officer, if you so desire they will be called or he will be taken before them for search. He has stressed upon them that they may search him. After obtaining the consent of Mohd. School on consent letter, he has stated that he was caught by them and even if it is searched before the Magistrate or Gazetted Officer, Charas will come out before them also. Thereafter, consent and memo were prepared and got it signed by accused-appellant. After which police party searched each other, then no suspicious object was found with anyone. After that Mohd. School was searched and a bag was found in his right hand inside it two plastic packets one yellow colour and one beige plastic packets were recovered and inside the yellow colour plastic packet two small packets of Charas wrapped in white and yellow plastic foil and four packets were found in beige plastic. Inside the packet, Charas in shape of cylindrical rod was found wrapped in plastic polythene. The charas was weighed by scale which was kept in Jeep and its weight was found 5 Kg. and 150 gm of Charas. The accused-appellant was asked to show the authorisation for possession or carrying Charas but he could not show it and started apologizing for his mistake again and again. Charas was taken in custody at about 19:50 p.m. and recovered Charas was put in the same bag and was sealed and sample seal was prepared. Thereafter, accused-appellant was asked about the source of the charas received, it was told that narcotic substance Charas was given by a Thapa at the Tawliwa border in Nepal the name is not known. On enquiry he told that one year ago he fled by digging tunnel from of Tawliwa in Nepal and along with him eight other prisoners were also escaped. He has further stated that S.I. Ram Samujh (PW-2) scribed the recovery memo Ex.Ka-3 on dictation of S.I. Dinesh Kumar and has read over to informant and accompanying police personnels and thereafter S.I. Dinesh Kumar informant signed it and police personnels also signed on recovery memo as witnesses and the copy of it was given to accused-appellant Mohd. School. He has further deposed that S.I. Dinesh Kumar Yadav had taken to police station the recovered contraband along with accused-appellant and recovery memo and got the case registered at Police Station- Shohratgarh. It was further deposed that the recovery memo, consent memo in compliance of Section 50 NDPS Act and the memo of arrest of the accused-appellant was prepared in light of torch and headlight of the Jeep. In cross-examination, he has stated that SOG incharge S.I. Dinesh Kumar though met him in Shohratgarh Town at 07:00 p.m. He has further corroborated that the place of occurrence is 6 kilometer from Shohratgarh police booth. He has further corroborated that they reached at the place of occurrence at 07:40 p.m. and had seen the accused-appellant hiding from headlight of Jeep at the same time. He has further corroborated that it took two hours in completing the entire proceeding at the place of occurrence. He has further stated that the Charas was sealed and sample seal was prepared at the place of occurrence. He has further corroborated that the Charas was sealed in that bag from which it was recovered. He has denied the suggestion of counsel for the accused-appellant that he had apprehended the accused-appellant from his house. He has also denied the suggestion of counsel for the accused-appellant that Mohd. School was doing business of firecrackers by preparing it manually and because of not greasing the hand of SOG incharge he was falsely implicated.
19. As discussed earlier that the counsel for accused-appellant has not asked any question regarding apprehending the accused-appellant from Sukrauli bazar in broad day in public view and later he was kept for 22 days in illegal police custody and later on he was challenged by planting false recovery. Therefore, in above circumstances the statement of accused-appellant as stated in statement under Section 313 Cr.P.C. will be taken into consideration in appreciating the evidence of prosecution and in arriving at a conclusion regarding the truthfulness and falsity of the prosecution case. Nothing came in their cross-examination which indicates that false recovery was planted on accused-appellant. In above circumstances, it is proved that the depositions of the witness S.I. Dinesh Kumar (PW-1) and S.I. Ram Samujh (PW-2) is unimpeachable and liable to be relied. From their consistent statements, it is proved beyond doubt that on 4.1.2010 a bag was recovered from accused-appellant in which two packets were recovered out of one packet two packets and out of another packet four packets of contraband were recovered.
20. From above unimpeached testimonies of S.I. Dinesh Kumar (PW-1) and S.I. Ram Samujh (PW-2), it is proved beyond reasonable doubt that accused-appellant was apprehended at 07:40 p.m. on 4.1.2021 in the lonely place from grove. There is no evidence on record, which proves that they have any previous knowledge regarding possession and carrying of contraband by the accused-appellant. From the evidence on record, it also transpires that the accused-appellant stopped on suspicion all of sudden and he told that he has Charas in his bag in his right hand, therefore, no public witness can be procured which is quite natural. Therefore, non-joining the public witnesses in search is not in any way adversely affect the prosecution case. It is further proved by the evidence on record that the Charas was recovered from the bag which was in his right hand not from his personnel search, therefore, the compliance of Section 50 of NDPS Act was not needed although it is proved beyond reasonable doubt from an unimpeached testimonies of S.I. Dinesh Kumar (PW-1) and S.I. Ram Samujh Prabhakar (PW-2) that he was informed about his legal right to be searched before competent Magistrate or Gazetted Officer but accused-appellant has stated that Charas will be recovered before Gazetted Officer or Magistrate and it will make no difference and has authorised S.I. Dinesh Kumar to search him and signed on consent letter Ex.Ka-1 which is proved to be ascribed by S.I. Ram Samujh Prabhakar (PW-2) and thereafter search was made. The signature of Mohd. School and recovery memo and consent letter were proved by above witnesses. So far as absence of zero in between मो and School on consent form and presence of zero (0) in between मो and School on recovery memo is concerned, it appears that it was deliberately done by accused-appellant to create the defence. He has not moved any application for comparing his signature on consent form with the recovery memo or by giving specimen signature to handwriting expert, but that was not done. From above, it appears that it was deliberately done by accused-appellant to create the defence. Therefore, in above circumstances, it is proved beyond reasonable doubt that accused-appellant Mohd. School has executed the consent form and deliberately omitted '0' from मो. Therefore, it cannot be said that some other person has signed the consent form and I find the argument of counsel for accused-appellant is devoid of merit.
21. The Hon'ble Apex Court in the case of "State of Rajasthan Vs. Parmanand and others (2014) 85 SCC 662" has held as under:-
"....Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, section 50 NDPS act will have application. In this case respondent no.1 Parmanand's bag was searched. From the bag opium was recovered. His personal search was also carried out. Personal search of respondent no.2 Surajmal was also conducted. Therefore, in light of the judgement of this Court mentioned in the preceding paragraph, section 50 of NDPS act will have application."
22. The Hon'ble Supreme Court in the case of "State of Himachal Vs. Pawan Kumar with State of Rajasthan Vs. Bhanwarlal AIR 2005 SC 2265" has observed as under:-
"....A bag, briefcase or any such article or container etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a Thaila, a Jhola, a Gathri, a holdall, a carton etc. of varying size, dimensional or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on shoulder or Back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in section 50 of the Act. "
23. In case in hand, the contraband was recovered from the bag carrying by the accused-appellant in his right hand, therefore, the compliance of Section 50 of NDPS Act was not needed although it was complied as precaution.
24. So far as the argument of learned counsel for accused-appellant regarding non-joining of public witnesses in the search is concerned, it is proved from evidence on record that the recovery was made from the accused-appellant without prior knowledge by the police personnels that accused-appellant has Charas and recovery was made all of sudden in a lonely place of grove where no public witnesses were present. In above circumstances, non-joining of public witnesses in search will not affect the prosecution case.
25. The exposition of law regarding the evidence of police personnels, the Division Bench of Hon'ble Apex Court in case of Sama Alana Abdullah Vs. State of Gujarat (1996) 1 SCC 427 has held as under:-
"......Only P.I.B.B. Dwivedi and P.S.I. Gohil have stated that the map was found from the house from a tin trunk kept on a cupboard. Therefore, in the absence of any independent evidence the High Court ought not to have held that the appellant was in conscious possession of the said map particularly when at the time of the raid he was not present in the house. In support of the submissions that the evidence of P.I. Dwivedi and P.S.I. Gohil should not be regarded as sufficient it was also submitted that they had taken two persons of Bhuj as Panchas to witness the raid instead of taking independent witnesses from the locality i.e. Village Nana Dinara and does it becomes apparent that they were selected Panch witnesses and therefore to that extent the investigation was not fair and impartial. Even on close scrutiny of the evidence of P.I. Dwivedi and P.S.I. Gohil, we see no reason to disbelieve this explanation. It cannot, therefore, be said that the investigation was not fair and therefore independent Corroboration was necessary. Again their evidence cannot be rejected only on the ground that they are police witnesses and were members of the raiding party. Their evidence receives corroboration from the Punchnama. It may be stated that the other panch witness could not be examined by the prosecution because he had expired before his evidence could be recorded."
26. A Division Bench of Hon'ble Supreme Court in case of "Anil @ Andya Sadashiv Nandoskar Vs. State of Maharashtra (1996) 2 SCC 589" has held as under:-
".......Indeed all the 5 prosecution witnesses who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinised and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their Creditworthiness."
27. It inspires confidence and learned counsel for the accused-appellant has not been able to point out any serious infirmity in their evidence. The Division Bench of Hon'ble Supreme Court in the case of "Pradeep Narayan Madkoonkar Vs. State of Maharashtra (1995 ) 4 SCC 255" has held as under:-
"..... The evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony."
28. The Division Bench of Hon'ble Supreme Court in the case of "Mohan Singh Vs. State of Haryana (1995) 3 SCC 192" has held as under:-
"...... In these facts and circumstances when the police officials deliberately avoided to join any public witness or railway officials though available at the time when the appellant was apprehended the evidence of Heera Lal who is nothing but a chance witness and the evidence of police officials PW6 and PW7 has to be closely scrutinised with certain amount of care and caution."
29. The three judges bench of the Hon'ble Supreme Court in case of "PP Beeran Vs. State of Kerala AIR 2001 SC 2420" has held as under:
"....The case alleged against him shows that he was found in possession of 23.5 grams of opium at the time when he was intercepted and searched by PW2, sub-inspector of police. We have noticed that two witnesses were called by PW2 at the time of search out of whom one was examined as PW1 and the other was not examined. But even the one examined (PW1) did not support the prosecution and hence he was treated as hostile. Though an argument was addressed by Mr. R. Venkataramani, learned senior counsel for the appellant that the evidence of PW2, sub-inspector of police remained uncorroborated, and therefore, that should not be made the sole basis for conviction, it is too late in the day for us to reject the testimony of PW2 on that ground alone. Even otherwise, it cannot be said that evidence of PW2 remains uncorroborated because the fact that opium was recovered from his person and also Exhibit P2 which is an endorsement containing the signature of the appellant could be treated as circumstances corroborating the testimony of PW2."
30. The police personnels are competent witness to adduce evidence before the learned court below, therefore, there is no substance in the argument of the learned counsel for the accused-appellant that in absence of independent witness no reliance can be placed. Other police personnels who are the persons by whom and by whose presence the recovery of Charas and on Charas a yellow packet Material Ex.-2 was marked and Charas was found in white packet Material Ex.-3 was marked on Charas found in yellow packet.
31. The witness Anoop Kumar Shukla (PW-5) has stated on oath that the investigation of this case was undertaken by him on 5.1.2011. He copied the check report and GD registering the case in CD. He also recorded the statement of S.I. Dinesh Kumar and prepared site plan Ex.Ka-7 on pointing out of S.I. Dinesh Kumar. He also deposed that entire recovered contraband was sent to Forensic Science Laboratory for chemical examination.
32. Ct. Baban Singh (PW-3) deposed that he was posted on 16.1.2011 at Police Station- Shohratgarh and on that day he left Shohratgarh for going to Forensic Science Laboratory at 18:45 p.m. by getting docket made with specimen seal and sealed bag of Crime No.11 of 2011, under Section 8/22 of NDPS Act pertaining to accused-appellant Mohd. School and handed over the same to Forensic Science Laboratory, Lucknow on 17.1.2011 along with specimen seal at Receipt No.347. He further deposed that he took the contraband in sealed condition and handed over to Forensic Science Laboratory in safe custody along with specimen seal in intact sealed condition. He had also proved docket Ex.Ka-4. He further desposed that he has taken the contraband in sealed condition from the Malkhana Moharir and proceeded to FSL, Lucknow and entry in this regard was made in GD Report No.36 on 16.1.2011. He also proved the photo copy of entry of GD Report No.36 dated 16.1.2011 Ex.Ka-5. In cross-examination, he has stated that the contraband was handed over to him by incharge Malkhana. He has further stated that he received the contraband in sealed condition and sealed was found intact. He further admitted the suggestion of learned counsel for the accused-appellant that on specimen seal Mohd. School was written. He further stated that the contraband with sample seal was handed over to FSL for its analysis. Nothing came in his cross-examination which makes his statement unreliable. In above circumstances, his statement can be safely relied on and from it, it is proved that he has obtained the contraband from Malkhana of Police Station- Shohratgarh along with specimen seal in intact condition and had handed over it to FSL along with specimen seal in safe custody.
33. Ct. Ram Agya Prasad was also examined as PW-4 to prove the safe custody of the contraband in police Malkhana and he has stated that he came with Malkana Register of Police Station Shohratgarh of the year 2011 wherein at Serial No.1 the details of the contraband along with Crime No.11 of 2011 under NDPS Act (State Vs. Mohd. School) is entered. He further deposed that entry of this register begins from the year 2010 and contained the entry up to 7.6.2011 and Goshwara was appended at the end of each month. He further deposed that the entery was signed by Head Muharir and officer-in-charge of the station Shri Anoop Kumar Shukla along seal. He has proved the entry and the signature of S.I. Anoop Kumar Shukla and has filed the photo copy of relevant entry pertaining to this case as Ex.Ka-6. In cross-examination he has admitted that he is working at Police Station Shohratgarh from 8.9.2011, therefore, he could not tell as to who has made entry in the register. No other question was put in cross-examination. From the deposition of Ram Agya Prasad (PW-4), it is proved that the Malkhana Register was produced from proper custody and it was also proved from the statement of Ct. Babban Singh (PW-3) that he received the case property to be conveyed to FSL which was kept in safe custody at Police Station Shohratgarh. From the statement of PW-3 and PW-4, safe custody of the contraband is proved beyond reasonable doubt. It is pertinent to mention here that S.I. Anoop Kumar Shukla (PW-5) was also examined, but he was not cross-examined to contradict PW-3 regarding entry and safe custody of the contraband. It is proved from the statement of PW-3 that S.I. Anoop Kumar Shukla (PW-5) was the Station House Officer of Police Station Shohratgarh, therefore, the statement of Ram Agya Prasad (PW-3) is liable to be relied on, and therefore, it is proved that the case property was kept in Police Station in safe custody. It is also proved from the statement of Ct. Babban Singh (PW-3) that the contraband was carried to FSL for chemical analysis in safe custody and thereafter was kept in Police Station in safe custody and later was produced before the court from the Police Station in safe custody.
34. It is submitted by learned counsel for the accused-appellant that no sample was taken from the contraband and entire contraband was sent to FSL for its chemical analysis, therefore, on this count for violation of provision of Section 52-A of NDPS Act, the forensic science report is in accordance with the evidence. It is further submitted that due to a reason, it is not proved that the contraband alleged to be recovered from the accused was Charas, therefore, offence under Section 8/22 of NDPS Act is not proved against the accused-appellant.
35. A co-ordinate Bench of this Court in the case of "Devendera Kumar Mishra Vs. State of UP" reported in 1998 Crl (J) 2348 (at page 2350 in paragraph 3) has observed as under:-
".....The learned Counsel for the applicant then switched gear to another submission of there being no compliance with the requirements of section 52-A of the Act. The submission of the learned counsel too is sans any substance. Section 52-A of the Act postulates disposal of seized Narcotic Drugs and Psychotropic Substances and lays down the procedure therefor. Non-compliance, if any, of section 52-A of the Act, would not render the search and seizure illegal, nor will it degenerate the recovery of contraband into one being inadmissible in evidence...."
36. Therefore, sending of the entire contraband for chemical examination will not render the recovery of contraband and chemical examination report of forensic science laboratory Ex.Ka-11 as inadmissibility. From analysis and appreciation of evidence led by prosecution, it is proved beyond reasonable doubt that the contraband recovered from the accused-appellant was found to be Charas and for possessing of which he has no authorisation letter.
37. So far as the argument of learned counsel for accused-appellant regarding non-production of specimen seal of the contraband in the court is concerned, it is proved beyond reasonable doubt that the recovered contraband was sent to FSL for chemical examination and it was opened after comparing with specimen seal and was after taking sample for chemical examination and was resealed by FSL authorities and there is a presumption that public authorities will discharge their duties according to law. There is no evidence on record which establishes that the accused has complained to higher authorities regarding illegal planting of the contraband by PW-1 and PW-2.
38. In above circumstances, I find no substance in the argument of learned counsel for the accused-appellant that the law laid down by High Court of Allahabad in Mohammad Mustafa (supra) is applicable in this case being distinguishable from the fact and circumstances of this case. Therefore, it is proved beyond reasonable doubt that the accused-appellant has signed the consent letter Ex.Ka-1 and deliberately omitted '0' after "Mo", which is written in Hindi to mislead the prosecution and the court as well. From the evidence on record, it is established that the contraband Charas 5 kg and 150 gm was recovered from accused-appellant. It is also proved beyond reasonable doubt that the search was made without prior information as surprise in secluded place grove in the late evening, therefore, non-joinder of the such by independent witness will not affect the prosecution case. Point of determination (i) to (iii) are decided accordingly. Therefore, it is held that learned court below has rightly held the accused-appellant guilty for offence punishable under Section 20(b)(ii)(C) of NDPS Act. The court has awarded the minimum punishment that is rigourous imprisonment for 10 years with a fine of Rs.1,00,000/-, therefore, it cannot be said that the sentence awarded by the learned court below was severe. This appeal is liable to be dismissed and, accordingly, the appeal is dismissed. Consequently, the impugned judgement of conviction and order of sentence dated 29.4.2013 passed by court below is hereby confirmed.
Order Date :-2.3.2022 Anil K. Sharma