Allahabad High Court
Manga vs State Of U.P. on 26 April, 2019
Equivalent citations: AIRONLINE 2019 ALL 996
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Judgment Reserved on 12.04.2019
Judgment Delivered on 26.04.2019
Court No. - 1
Case :- CRIMINAL APPEAL No. - 5522 of 2009
Appellant :- Manga
Respondent :- State Of U.P.
Counsel for Appellant :- Amit Daga,Abhishek Rai,Anand Kumar Mishra,M.N. Pathak,Sunil Kumar Singh
Counsel for Respondent :- Govt. Advocate
With
Case :- CRIMINAL APPEAL No. - 5554 of 2009
Appellant :- Ram Kumar
Respondent :- State Of U.P.
Counsel for Appellant :- Amit Daga,M.N. Pathak,P.S.Pundir
Counsel for Respondent :- Govt. Advocate
With
Case :- CRIMINAL APPEAL No. - 5387 of 2009
Appellant :- Momeen
Respondent :- State Of U.P.
Counsel for Appellant :- Amit Daga,Onkar Singh
Counsel for Respondent :- Govt. Advocate
With
Case :- CRIMINAL APPEAL No. - 5351 of 2009
Appellant :- Sauraj
Respondent :- State Of U.P.
Counsel for Appellant :- Amit Daga,Onkar Singh
Counsel for Respondent :- Govt. Advocate
With
Case :- CRIMINAL APPEAL No. - 5412 of 2009
Appellant :- Ombeer
Respondent :- State Of U.P.
Counsel for Appellant :- Amit Daga,Pawan Singh Pundir
Counsel for Respondent :- Govt. Advocate
Hon'ble Ramesh Sinha,J.
1. The present Criminal Appeals have been preferred against the judgment and order dated 28.8.2009 passed by Addl. Sessions Judge, Court No.12, Muzaffarnagar in Special Case No.1 of 2004, State Vs. Manga and others, arising out of Case Crime No.903 of 2003, u/s 18/20 N.D.P.S. Act, P.S. Kotwali, district Muzaffarnagar whereby trial court has convicted the accused-appellants Manga and Ram Kumar for an offence u/s 18/20 N.D.P.S. Act for ten years R.I with fine of Rs. one lac, in Special Case No.2 of 2004, State Vs. Ombeer, arising out of Case Crime No.904 of 2003, u/s 18/20 N.D.P.S. Act, P.S. Kotwali, district Muzaffarnagar, the trial court has convicted the accused-appellants Ombeer for an offence u/s 18/20 N.D.P.S. Act for 7 years R.I with fine of Rs.50,000/-, in Special Case No.3 of 2004, State Vs. Sauraj, arising out of Case Crime No.905 of 2003, u/s 18/20 N.D.P.S. Act, P.S. Kotwali, district Muzaffarnagar, the trial court has convicted the accused-appellants Sauraj for an offence u/s 18/20 N.D.P.S. Act for 7 years R.I with fine of Rs.50,000/-, in Special Case No.4 of 2004, State Vs. Momeen, arising out of Case Crime No.906 of 2003, u/s 18/20 N.D.P.S. Act, P.S. Kotwali, district Muzaffarnagar, the trial court has convicted the accused-appellants Momeen for an offence u/s 18/20 N.D.P.S. Act for 7 years R.I with fine of Rs.50,000/-.
2. Since all the criminal appeals arise out of a common judgment and order, hence with the consent of learned counsel for the parties, all the criminal appeals are being heard and decided by this common judgement and order.
3. It is noteworthy to mention here that there were six accused persons involved in the present case including the appellants who were put to trial and they have been convicted for the offences in question out of which the appellant Brij Mohan, S/o Om Prakash who had preferred an appeal against his conviction being Criminal Appeal No.5584 of 2009 has died during the pendency of the trial and his appeal has been ordered to be abated by this Court vide order dated 16.11.2018. Hence the Court proceeds to adjudicate the appeals filed by the aforesaid five appellants.
4. The prosecution case as has been set-out in the FIR is that on 17.12.2003, In-charge Inspector Vijay Kumar along with S.I. Surajpal Singh, Iftqar Quraishi, Head Constable Subodh Kumar, Satyaveer, Constable Pankaj Kumar, Deep Pal, Vijay Kumar, Manoj Kumar along with driver of official Jeep Virendra Singh were on patrolling duty for maintaining law and order and were in search of wanted accused, then they received an information from an informer at Chungi No.2 that in Mohalla Ram Leela Tilla, Brij Mohan, S/o Om Prakash is carrying on the business of explosives and some other illegal items. On believing the information of the informer to be true, a search was made of witnesses by him but no one was ready for the same, hence after taking their personnel search and being satisfied that no person is having any illegal items with them, he proceeded along with other police personnel towards destination given by the informer and reached at Gali No.5 and on the pointing out of the informer, the police party entered into the house of Brij Mohan and went into a room which was on the Eastern side, three persons who were sitting on a carpet floor (dari) out of which, in-front of one person, there was a Scale (Taraju) and butt (weights) were kept. In-front of the other person, there was an article kept in a cloth bag in black polythene and the third person had kept a polythene in his lap in which money was kept and three persons were standing and each of them were carrying a black polythenes in which there was some items. Then the informant who was the Station Officer had questioned the said persons that what is the article in the bags and polythenes then they informed that it was Charas. At 2.30 p.m. in the afternoon again it was asked by the informant from the said persons that whether they wanted to get them search before the Gazetted Officer or the Magistrate so that they may be called and all of them stated that when they have already been arrested, then the informant may take search of them. Hence notices u/s 50 of N.D.P.S. Act was prepared and served and obtained signature of Mangey Ram which was marked as Ext.Ka-2, Ram Kumar which was marked as Ext.Ka-3, Brij Mohan which was marked as Ext.Ka-4, Ombeer which was marked as Ext.Ka-5, Sauraj which was marked as Ext.Ka-6, Momeen which was marked as Ext.Ka-7 and the persons who were keeping the cloth bag which was of 'Khaki' colour disclosed his name as Manga, S/o Govardhan Das, R/o Purani Alu Mandi, P.S. Kotwali and stated that in the bag, Charas was recovered which was kept near him and the same was weighed on the scale then it was found that it was about 6.5 kg and in the said bag, there was small packets of Charas weighing 250 gram also. The second person before whom the scale and butt (bantkhara) of 1 kg, ½ kg and 200 gram were kept, had disclosed his name to be Brij Mohan S/o Om Prakash, R/o 128 Gali No.5, Ram Leela Tilla, P.S. Kotwali. The third person disclosed his name to be Ram Kumar, S/o Om Prakash, R/o 128, Gali No.5, Ram Leela Tilla, P.S. Kotwali. The persons who were standing, the fourth person disclosed his name to be Ombeer, S/o Brahm Singh, R/o Village Mandbhar, P.S. Bhaurakala, Muzaffarnagar in whose left hand a polythene of black colour in which 500 gm. Charas was recovered which was also weighed on scale (Taraju). The fifth person disclosed his name as Sauraj, S/o Mangat Ram, R/o Village Mundbhar, P.S. Bhaurakala, Muzaffarnagar and he was also carrying a black polythene in his left hand in which 500 gm. Charas was also recovered which too was weighed and the sixth person disclosed his name as Momeen, S/o Haqmuddin, R/o Nayi Basti, Kasba and P.S. Budhana, Muzaffarnagar who was also carrying a polythene in his left hand in which 500 gm. Charas was also recovered which too was weighed on the scale. Rs.38,521/- were recovered from the person who was sitting namely Ram Kumar. On further query made from Ombeer, Sauraj and Momeen told that they have purchased the said Charas from there only and have purchased the same at the rate of Rs.8,000/- per kg. The accused Ram Kumar stated that the money which was recovered from him was of Charas which was sold by him and the said house belong to him and Brij Mohan and Manga is his uncle and they sell the Charas together from their house. The said act of the said accused persons was an offence under Section 18/20 of Narcotic Drugs and Psychotropic Substances Act (here-in-after referred to as the N.D.P.S. Act). All the accused Manga, Brij Mohan, Ram Kumar, Ombeer, Sauraj and Momeen were informed of their act which was an offence, hence they were taken into custody.
5. The Charas which was recovered from bag of 6.5 kg., two samples of Charas weighing 300 gram out of which 150-150 gram were taken as sample and sealed by the informant and rest of the Charas i.e. 6.2 kg. was kept in the said back along with the butts (bantkhara) of 1 kg, ½ kg and 200 gram and the scale (Taraju), the bag was chained. The back was kept in a white cloth which was sealed and the Charas which was recovered from accused Ombeer, Sauraj and Momeen were kept separately in a polythene bag and sample seal was also taken. A slip was fixed on the scale (Taraju) and was taken into custody. The fard recovery memo was prepared by Suraj Pal Singh on the dictation of the informant and thereafter the fard was readover and after understanding the same, the police party and the accused signed the same. Copy of the recovery memo was given to all the accused persons which was also signed by them. The recovery memo Ext. Ka-1 of the arrested accused and the recovered items were taken by the police party to the police station Kotwali where FIR was registered against the accused persons u/s 18/20 of N.D.P.S. Act and Chik FIR was prepared as Ext.Ka-8.
6. The investigation of the case was entrusted to S.I. Jairaj Singh who during the investigation prepared the site-plan of the place of occurrence and proved the same as Ext.Ka-11 and after completing the investigation, submitted charge sheet against the accused Manga, Brij Mohan and Ram Kumar which is Ext.Ka-12 and against accused Ombeer submitted charge sheet Ext.Ka-13, against accused Sauraj submitted charge sheet Ext.Ka-14 and against accused Momeen submitted charge sheet Ext.Ka-15 in the competent court. The contraband article which was recovered from the accused persons were sent to Vidhi Vigyan Prayogshala and the report of the same is available on record.
7. The trial court has framed charges against the accused persons u/s 18/20 N.D.P.S. Act and the accused denied the charge and claimed their trial.
8. The prosecution in support of it's case has examined P.W.1 Vijay Kumar (informant), P.W.2 Surajpal Singh, P.W.3 Subodh Kumar, P.W.4 Nand Kishore and P.W.5 Jairaj Singh.
9. The accused persons in their statement u/s 313 Cr.P.C. have denied the prosecution case and incident and stated that no recovery was made from them and all the papers which were prepared were false and fabricated and they were falsely implicated and the witnesses were falsely deposing against them. The accused did not produce any defence evidence.
10. P.W.1 Vijay Kumar who is the informant of the case has deposed before the trial court that on 17.12.2003 he was posted as In-charge Inspector of Police Station Kotwali, district Muzaffarnagar and on the said date, he along with S.I Surajpal Singh, S.I. Iftqar Quraishi, H.C.P Subodh Kumar, Satyaveer, Constable Manoj, Deep Pal, Pankaj Kumar, H.C. Satbir Singh along with driver of official Jeep Virendra Singh were on patrolling duty for maintaining law and order and were in search of wanted accused, then they received an information from an informer at 12.12 noon at Chungi No.2 that in Mohalla Ram Leela Tilla, Brij Mohan, S/o Om Prakash is carrying on the business of illegal items, explosives and intoxicating articles. On receiving the said information and believing the information of the informer to be true, he proceeded towards Mohalla Ram Leela Tilla along with police force and tried to obtain the independent witnesses for the same but none of the witnesses were ready hence he ensured that none of the police personnel were carrying any illegal items with them, proceeded towards Mohalla Ram Leela Tilla at Gali No.5 and on the pointing out of the informer, the police party entered into the house of Brij Mohan and went into a room which was on the Eastern side and raided the same where they found six accused persons and has narrated in his statement the entire prosecution case and the recoveries made as has been set-out by him in the fard recovery memo/FIR, hence for the sake of brevity, the same is not being repeated. He further stated in his statement that a sealed bundle was opened in the Court with it's permission in which three big bundles and two small bundles were opened in which 500-500 gram of Charas was kept which was recovered from Ombeer, Sauraj and Momeen who had purchased the said contraband articles from accused Manga, Brij Mohan and Ram Kumar and two samples of sealed bundles were also sent for chemical analyst in which two bundles of 150-150 gm. were Charas which was recovered from Sauraj was marked as material Ext.-1 and the Charas which was recovered from Ombeer was marked as material Ext.-2 and Charas recovered from accused Momeen was marked as material Ext.-3, sample sealed was marked as material Ext.4 and 5 and one big bundle which was opened in the court in which 6.5 kg. of Charas was kept in the presence of all accused persons was marked as material Ext.8. From the said bundle there was one scale (Taraju) was found which was marked as material Ext.7 and the weight butt (bantkhara) of 1 kg, ½ kg and 200 gm. which were marked as material Ext.8, 9 and 10. A black polythene in which small packets of red colour polythenes in which Charas was kept which about weight was 25 gram and a scale was marked as material Ext.11 and further in a polythene bag Rs.38,521/- which were recovered from the business of sale of Charas and the said notes were marked as material Ext.12. In his cross-examination, the witness has stated that on the Scale (Taraju) a slip was affixed but it must have been torned while keeping the articles and case property. The articles kept in the cloth bag was sealed with a cloth and on the said bundle, there is his signatures and there is no signatures of any witness or accused or thumb impression. The said bundle relates to recovery made from the three accused. The police party had kept the articles contraband separately after weighing the same. From it 150-150 grams sample was weighed and taken out. It is correct that in the samples sealed, there is no signatures of the accused or the witness. The said article was in the lap of the accused Manga and the two accused Brij Mohan and Ram Kumar were sitting in the Varanda and the said accused had stated that they are engaged in the business of sale of Charas. In Ext.Ka-1 he had not disclosed that the said article was kept in the lap by the accused nor the same was stated in 161 Cr.P.C. statement. In-front of Brij Mohan, the scale (Taraju) and the butt (bantkhara) were kept and he was weighing with the same. From the scale of the weighing machine, no Charas was recovered. The work which was being done by him, he meant to say that he was selling the Charas and had sold the same to Momeen, Ombeer and Sauraj. He was in-front of scale (Taraju). The Charas which was sold to accused Momeen, the same was not weighed before him. He further stated that it is correct that there was no transaction of money before him. It was further stated by him that when the case property is submitted at the police station, endorsement of the same is made in the maal register and the said property/article is numbered by the malkhana moharir by his convenience. The witness stated that he cannot tell that how many times the case property was taken out from the malkhana and thereafter again kept in the malkhana. The case property was sent to the chemical analyst and how much percent was the density of intoxicant found, he does not know fard recovery memo was prepared and written at the place of occurrence and all the facts were written there only. Thereafter he did not make any writing on the same. On the personal search of the accused money was recovered or not, he does not know.
11. P.W.2 Surajpal Singh has deposed before the trial court that on 17.12.2003 he was posted at police station Kotwali, Muzaffarnagar and on that day he along with Inspector Vijay Kumar and other police persons were on patrolling duty in search of an accused. At 12.12 hours, they received an information at Chungi no.2 from the informer that in Mohalla Ram Leela Tilla, Brij Mohan, S/o Om Prakash is carrying on the business of explosives and illegal items is going on. On believing the same they along with police party reached there and he too has narrated in his statement the version given by P.W.1 before the trial court as well as the narration which was given in the fard recovery memo, hence for the sake of brevity, the same is not repeated. The said witness in his cross-examination has stated that he has prepared the fard recovery memo and prepared the same after keeping the carbon beneath. On the spot no money was recovered from the accused Momeen, Sauraj and Ombeer. The police station Kotwali is at a distance of 600-700 meter from Chungi No.2. On receiving the information from the informer, he did not contact the higher officials and at the time of the recovery also, no money was recovered from the accused persons. No sample was taken from the accused persons. He also did not inform the accused persons for being search before the Magistrate or higher officials and he also did not state anything regarding their legal rights. All the accused were searched one by one and accused were searched by all the police personnels. He had weighed the Charas on the Scale (Taraju) and thereafter mentioned the same in the fard recovery memo. In total 8 kg. Charas was recovered. The Scale (Taraju) was of steel and both the scales (palla) were of steel and all the recoveries made from the accused, their signatures were obtained on the same. He had also signed the bundle and regarding the other police personnels, he is unaware of the same. The house from where Charas was recovered to the Eastern Side of the room and the entry was also from the Eastern side of the door which was opened and he had come to know that the contraband article was Charas from the colour and the smell which was disclosed by the accused and he is aware about the smell of Charas and if the Charas and other article is kept before him, then he can identify that which article is Charas.
12. P.W.3 Subodh Kumar has deposed before the trial court that in the year 2003 he was posted at police station Kotwali as Head Constable and on 17.12.2003, he along with Inspector Vijay Kumar and other police persons had left the police station at Rapat No.28 at 12.12 hours in search of wanted accused and maintaining law and order and he was also a member of the raiding team who had raided the place of occurrence and he too had also supported the prosecution case as has been set-out in the fard recovery memo/FIR as well as in the statement of P.W.1 and P.W.2 hence for the sake of brevity, the same is not repeated. This witness in his cross-examination has stated that the recovery memo of four pages of the recovery memo was prepared at the place of occurrence. The notice prepared in compliance of Section 50 of the N.D.P.S. Act bears his signatures. He did not inform any higher police official about the incident. He did not make any search and he did not remember whether he apprehended any accused. All the accused were apprehended by the police party. The recoveries which were made from the accused and from the place of occurrence nothing about the same was mentioned in the fard recovery memo. From the three accused persons Ombeer, Sauraj and Momeen, no evidence was collected from them regarding the purchase of Charas. He does not remember whether any money was recovered from them or not. As the accused have disclosed that the contraband article was Charas, hence the same was mentioned. Whether at the time of occurrence whether the recovered article was Charas or not, he cannot tell. The accused did not see the police party prior to entering in the house and apprehending them. Whether any sample of recovered Charas was taken from accused Ombeer, Sauraj and Momeen, he does not know. Charas was recovered from the search of accused Mangey. From the accused Brij Mohan, Ram Kumar, no Charas was recovered.
13. P.W.4 Nand Kishore has stated before the trial court that he was posted as Constable Clerk on 17.12.2003 at police station Kotwali, Muzaffarnagar and on the said date on the basis of fard recovery memo given by In charge Inspector Vijay Kumar, he prepared Chik No.653 of 2003 and registered case crime no.903 of 2003, u/s 18/20 N.D.P.S. Act against Manga, Brij Mohan and Ram Kumar and case crime no.904 of 2003 against Ombeer, case crime no.905 of 2003 against Sauraj and case crime no.906 of 2003 against Momeen, u/s 18/20 N.D.P.S. Act and registered FIR which was written in his handwriting and signatures and has proved Chik FIR as Ext. Ka-8. All the cases were endorsed in G.D. No.36 at 16.35 hours on 17.12.2003. The original G.D has been weeded out in accordance with law of which report has been brought by the said witness in the court which was written by R.K. Babu which is Ext.Ka-9 and photocopy of the original G.D. is marked as Ext.Ka-10 which was proved by him.
14. The said witness in his cross-examination has deposed that he is unaware of the fact that when the case property is submitted in the malkhana, then no number is put on the same and the same is endorsed in the register of the malkhana. It is correct that as many times, the case property is taken out from the malkhana and submitted back then on each time it's endorsement is made in the G.D and malkhana register. The G.D which was proved by him at the time of preparing in original was not prepared by him in the same process. He has not filed a photocopy of the same and he cannot tell how the same is on record. He has not given information about the incident to the higher officials and stated that only daily crime report was only sent.
15. P.W.5 Jairaj Singh who was examined before the trial court has stated that on 17.12.2003 he was posted as S.I. Of police station Kotwali in district Muzaffarnagar and he was entrusted with the investigation of the present case i.e. case crime no.903 of 2003, 906 of 2003 u/s 18/20 N.D.P.S. Act and during the investigation on 18.12.2003 he had recorded the statement of the informant and the witnesses and on 19.12.2003 at the pointing out of S.I. Suraj Pal Singh, he prepared the site-plan of the place of occurrence which was proved as Ext.Ka-11 and he had sent on 26.12.2003 through Brahma Singh the contraband article to Vidhi Vigyan Prayogshala, Agra and a report of the same was received on 6.2.2004 . The report of Vidhi Vigyan Prayogshala which is on record is paper no.7-Kha in three copies and after investigation, he submitted charge sheet no.807 against Manga, Brij Mohan and Ram Kumar and also submitted charge sheet against accused Momeen being charge sheet no.810, against accused Ombeer being charge sheet no.808 and against accused Sauraj being charge sheet no.809 which was in his handwriting and signatures and has proved the same as Ext.Ka-12, Ka-13, Ka-14 and Ka-15.
16. In his cross-examination, the witness has stated that on 18.12.2003 he had prepared two parcha's of the charge sheet and he had not mentioned the timings on the same. The parcha of 29.12.2003 which was submitted by the Inspector Vijay Kumar who is the informant of the case, has submitted the same but on the same, there was no signatures of the C.O. City. He has stated that the case property was taken out from the malkhana only once and he had not made an endorsement of the same in the concerned G.D and the concerned register nor has mentioned the same in the case diary. During the investigation, none of any witnesses had told him that the informant and other persons had told the accused that they had arrived of being search before any Magistrate or the Gazetted Officer. The fact about the right being disclosed to the accused was not told to him and only he received four samples. During the course of investigation he did not found any evidence that the accused Ombeer, Sauraj and Momeen had purchased the Charas. The contraband articles which were sent to the chemical analyst was not in his custody right from the time of recovery till the same was sent to the chemical analyst as the same was kept in the malkhana. The charas was kept in-front of Manga, Brij Mohan and Ram Kumar. He had submitted charge sheet against the accused persons before receiving the report from the Vidhi Vigyan Prayogshala. On the basis of the oral evidence collected, the charge sheet was submitted.
17. Heard Sri Amit Daga, Sri Anand Kumar Mishra, Sri P.S. Pundir and Sri Onkar Singh, learned counsel for the appellants and Sri M.C. Joshi, learned AGA for the State and perused the impugned judgement and order passed by the trial court and lower court record.
18. It has been argued by learned counsel for the appellants that from the fard recovery memo and the evidence of the P.W.1, P.W.2 and P.W.3, it is evident that the contraband article i.e. Charas which was recovered from accused Manga which was kept in a polythene bag and stated to be 6.5 kg. Only sample of 300 gram were taken out from it for the purpose of sample and two samples of 150-150 gram each were sealed whereas the recoveries which were made from the other accused-appellants Ombeer, Sauraj and Momeen are concerned from whom 500 gram of Charas was recovered who were found standing at the place of occurrence and no sample was taken from the recoveries made from them, hence the conviction of the three appellants by the trial court is liable to be set-aside on this ground alone. It was further argued that so far as compliance of Section 50 of the N.D.P.S Act is concerned, the same has not been made by P.W.1 and jointly all the six accused were given an offer and informed by P.W.1 as to whether they want to get a search made before a Gazetted Officer or a Magistrate and on which it has been stated by the accused that they have already been arrested by him, hence their search would be taken by P.W.1. It is stated that the information about the right of an accused being search before a Gazetted Officer or a Magistrate is not a mere formality as has been provided u/s 50 of the N.D.P.S. Act. From the recovery memo and the evidence of P.W.1, it is apparent that it was only a formality which was made by P.W.1 who stated that he gave an offer to the said accused persons for being search before a Magistrate or Gazetted Officer and also got a notice prepared in compliance of Section 50 of the N.D.P.S Act which the accused have also signed and they have denied their right to be search before the Gazetted Officer or Magistrate. Hence on this count also the accused are entitled for acquittal from the present case as there has been no strict compliance of the mandatory provision of Section 50 of the N.D.P.S Act. It was next argued that from the evidence of P.W.5 Jairaj Singh, the Investigating Officer of the case, who has been categorically stated in his cross-examination that he did not find any evidence against the accused Ombeer, Sauraj and Momeen that they have purchased the Charas from the accused Manga, Brij Mohan and Ram Kumar in whose house the said contraband article was being sold. Moreover no money was also recovered from the said three accused i.e. Ombeer, Sauraj and Momeen and it is argued that they have been falsely implicated by the police. It was further pointed out from the evidence of P.W.3 Subodh Kumar and P.W.4 Nand Kishore that the contraband article which was recovered from the accused persons were kept in the malkhana of the concerned police station and it appears that the same was taken out on several occasions and deposited back in the malkhana, the said facts was also not endorsed in the G.D of the police station as well as in the malkhana register whereas P.W.5 Jairaj Singh has stated in his cross-examination that it was only once the contraband article was taken out from the malkhana of the concerned police station but there was no entry made in the G.D or the malkhana register about the same which itself shows that there was strong chances for tempering with the contraband article which was seized. It was further submitted that 6.5 kg. Charas was recovered from Manga Ram but the sample which was taken was 300 gram from it and two samples were prepared weighing 150-150 gram each and the report of the Vidhi Vigyan Prayogshala no doubt states that the sample which was seized was Charas but the density of it's being intoxicant has not been mentioned which itself creates doubt that the recovery which was made of 6.5 kg. was Charas or not. He further submits that there is no independent witness of the recovery made from the possession of the accused-appellants. In support of it's case, learned counsel for the appellants have placed reliance on the judgment of the Apex Court in the case of State of Rajasthan Vs. Parmanand and another reported in 2014 (2) SCC, 563 in which it was held by the Apex Court that the two accused persons have not informed of the rights individually and joint notice was engaged and one of the accused signed for both, hence the conviction was vitiated. Paragraph no.14 of the said judgement is as follows:-
14. 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. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated.
19. The learned counsel for the appellants has further placed reliance on the judgement of the Apex Court passed in the case of State of Rajasthan Vs. Gurmail Singh, reported in 2005 (1) JIC, 844 (SC). Para No.3 is quoted herebelow:-
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.
20. The learned counsel for the appellants has further placed reliance on the judgement of the Apex Court passed in the case of Arif Khan @ Agha Khan Vs. State of Uttrakhand, reported in 2018 AIR (SC) 2123. Para No.23 is quoted herebelow:-
23. Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. (See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392).
21. The learned counsel for the appellants has further placed reliance on the judgement of the Allahabad High Court passed in the case of Jai Pal and another Vs. State of U.P, reported in 2018 (2) ALL CriR 1398. Para No.33 is quoted herebelow:-
33. It would be pertinent to mention here that the prosecution has miserably failed to prove the recovery of opium from the accused appellants, because the arresting police party did not take care to measure the quantity of the contraband substance allegedly recovered from the accused nor took its sample as was the procedure prescribed under law, rather sent the entire quantity to Forensic Science Laboratory. It did not prove whose seal was affixed on the spot, which would stand in violation to the provisions under section 55 of the Act which mandated that an officer in charge of police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of the police station and which will be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with the seal of the officer in charge of the police station. No link evidence has been given as to where the contraband substance and its seal was kept in safe custody from the time it was allegedly recovered till it was sent to Forensic Science Lab and till it was to be presented before Court, nor Malkhana register has been produced to prove that it was kept in there during this period. No evidence is on record that sample seal was sent to the Forensic Science Lab for being compared with the seal which was affixed on the sample. The quantity is very small which could be planted also. Merely because the genuineness of the challani documents had been admitted by the defence counsel, that was no ground not to examine investigating officer of this case and provide opportunity to the defence to cross-examine him in regard to the statements of witnesses i.e. PW 1 and PW 2 particularly when even case property was not produced before Court. The above cited law clearly shows that it was very much required for prosecution to produce case property before Court for being exhibited, merely proving the recovery memo, which is a document prepared by police was not sufficient to hold the accused persons guilty. Till the prosecution proves beyond reasonable doubt the recovery of the contraband substance from the accused persons, no burden may be shifted on the accused to prove as to how they came in possession of the contraband substance. The finding of lower Court seems erroneous as the sole basis of it is that the Forensic Science Laboratory had found the recovered contraband to be opium. In view of so many loopholes, the compliance of section 57 of the Act became all the more important to dispel any doubt about recovery, but even that has not been made which certainly has caused prejudice to the accused persons. In this backdrop, this Court finds that the judgment of the Court below needs to be set aside and is accordingly set aside.
22. Learned AGA on the other hand has vehemently opposed the arguments of learned counsel for the appellants and submitted that the contraband article which was recovered from the house of accused Manga, Brij Mohan and Ram Kumar was in huge quantity in total 8 kg. of Charas out of which 6.5 kg. was recovered from three accused persons Manga whereas from the other three accused namely Ombeer, Sauraj and Momeen, 500 gram was recovered from them who had come to the house of Manga, Brij Mohan and Ram Kumar to purchase the Charas and they were arrested on the spot. The recoveries of the huge quantity from the house of three accused-appellants namely Manga, Brij Mohan and Ram Kumar and the presence of three accused-appellant Ombeer, Sauraj and Momeen in the house of Manga, Brij Mohan and Ram Kumar in no manner can be said to be their false implication. He stated that as the three accused Manga, Brij Mohan and Ram Kumar were engaged in the business of Charas and three accused Ombeer, Sauraj and Momeen had come to purchase the Charas and the police party on receiving an information raided the house where the illegal sale of contraband article was going on. The police has arrested them along with contraband article and cash which was recovered from accused Ram Kumar amounting to Rs.38,521/- shows their active participation in the illegal sale and purchase of the contraband article. He submitted that so far as non-compliance of Section 50 of the N.D.P.S. Act is concerned, it is apparent from fard recovery memo and arrest memo which was marked as Ext.Ka-1 that all the accused persons were given an offer by the P.W.1 Vijay Kumar for being search before the Gazetted Officer or the Magistrate but they have denied their right for being search before the Magistrate or the Gazetted Officer and stated that their search may be taken by the police party. He has further drawn attention of the Court towards notice served on all the six accused persons which was signed by them, hence the provision of Section 50 of the N.D.P.S. Act has been fully complied with by P.W.1 The sample of Charas which was recovered from Manga as per the report of the Vidhi Vigyan Prayogshala was found to be contraband article Charas. He stated that as 500 gram of Charas which was recovered from other three accused namely Ombeer, Sauraj and Momeen, no sample appears to have been taken by the raiding party headed by P.W.1 cannot be a ground to exonerate for their acquittal as they were found present at the place of occurrence and were arrested on the spot while Charas was sold by the accused Manga, Brij Mohan and Ram Kumar and there appears to be no reason for their false implication by the police as they have failed to explain their presence on the spot. The discrepancies which has been shown for taking out the contraband article from the malkhana of the police station concerned does not go to the root of the matter in order to falsify the recovery made from the appellant. Hence he stated that the trial court has rightly convicted and sentenced the appellants.
23. I have heard the learned counsel for the parties and examined the submissions and perused the impugned judgement and order passed by this Court and lower court record.
24. From the prosecution case, it is apparent that 8 kg. of Charas was recovered by the police team headed by P.W.1 Vijay Kumar on receiving an information from the informer from the house of accused Manga, Brij Mohan and Ram Kumar. The police party raided the house and found that accused-appellant Manga was in possession of 6.5 kg. Charas, Brij Mohan was sitting with the scale (Taraju) and 'Baat' (weights) of 1 kg, ½ kg and 200 gram and accused Ram Kumar was found with cash of Rs.38,521/-. and three other accused-appellants namely Ombeer, Sauraj and Momeen were standing at the place of occurrence each with 500 gram Charas with them, in a black polythene bag, were apprehended by the police party. P.W.1 prepared the recovery memo of the contraband article and other items recovered from the said accused from the place of occurrence and also sealed the same. From the evidence of P.W.1 and the recovery memo which was prepared by him in the presence of police personnel. The accused Manga was found in possession of 6.5 kg. Charas and the two samples which were taken from the contraband article i.e. 150-150 gram total 300 gram were prepared, sealed and sent to Vidhi Vigyan Prayogshala of which report, it is apparent that the same was found to be Charas. So far as accused Brij Mohan is concerned, who was sitting with the scale (Taraju) and the 'Baat' (weights) at the place of occurrence and stated to be indulging the sale of the contraband article has died and his appeal has already been abated. The accused Ram Kumar was found in possession of cash of Rs.38,521/-. It is stated that the money which was recovered from his was the amount of the sale of contraband article to the three other accused persons Ombeer, Sauraj and Momeen who were arrested on the spot and from the possession of each of them 500 gram of Charas was recovered. Learned counsel for the appellants submitted that the money which was recovered from Ram Kumar belongs to him and was not the sale proceeds of the contraband article and the police has falsely implicated him in the present case. So far as the accused-appellants Ombeer, Sauraj and Momeen are concerned, recovery of 500 gram of Charas from each of them has been made as per the prosecution case but from the perusal of the recovery memo and the evidence of P.W.1 Vijay Kumar, it is apparent that no sample of the contraband article recovered from them was taken or sealed by P.W.1 and sent to Vidhi Vigyan Prayogshala, Agra. P.W.2 and P.W.3 who were the members of the raiding team, have not disclosed that any sample was taken from the said three accused persons of the recovery of contraband article which were made from them. Significantly from the evidence of P.W.5 Jairaj Singh who is the Investigating Officer of the case has submitted that he did not find any evidence against the three accused Ombeer, Sauraj and Momeen that they had purchased the contraband article from the other three accused namely Manga, Brij Mohan and Ram Kumar. No money was recovered from the said three accused persons also from their personal search as is evident from the evidence of prosecution witnesses and the recovery memo Ext.Ka-8. So far as strict compliance of mandatory provisions of Section 50 of N.D.P.S. Act is concerned, it is apparent that the police raided the house where illegal trade was going on and arrested all the accused persons on the spot after making necessary query from them. The accused disclosed that they were having contraband article of Charas with them. P.W.1 had disclosed to them about their right in view of Section 50 of N.D.P.S. Act whether they wanted to get a search being made before the Gazetted Officer or a Magistrate then the accused informed that as they have arrested by P.W.1 and the police party, then the search be taken by them. In this regard the memo which was prepared in compliance of Section 50 of the N.D.P.S. Act by P.W.1 shows that the accused have denied their right for being search before the Magistrate and Gazetted Officer and to say that the provisions of Section 50 of N.D.P.S. Act has not been strictly complied is not correct as all the six accused persons have signed the separate notices u/s 50 of the N.D.P.S Act which is Ext.Ka-2 to Ext.Ka-7 respectively and they have denied their right to be searched before the Gazetted Officer or the Magistrate. Moreover, the irregularities which have been shown by the counsel for the appellants in taking out the contraband articles from the malkhana of the concerned police station and relevant entries has not been made in the G.D and the relevant malkhana register by the police cannot be said to be a great significance in view of huge quantity which is said to have been recovered admittedly from the house of accused Manga, Brij Mohan and Ram Kumar and the recovery made from Manga was 6.5 kg of Charas as per the report of Vidhi Vigyan Prayogshala, the same was found to be Charas. The place where illegal trade of contraband article was made, admittedly belongs to the accused Manga, Brij Mohan (now dead) and Ram Kumar and such a huge recovery of the contraband article was made from the said house which belongs to the said three accused cannot be said to be a false implication of the said accused persons in the present case. The accused Manga is stated to be in jail for more than 9 years and 6 months and he has been convicted and sentenced for ten years R.I with a fine of Rs.1 lac by the trial court. He has failed to explain the huge recovery which has been made from him from his house. Hence his conviction and sentence by the trial court is fully justified. So far as the accused Ram Kumar is concerned from whom Rs.38,521 has been recovered and the house also belongs to him and his presence at the place of occurrence is also established and he was very well conscious that in his house the contraband article Charas was being sold. It cannot be said that the money which was recovered from him is not the sale proceeds of the contraband articles which was found with the accused Manga. Hence his conviction and sentence and fine imposed also by the trial court is also correct.
25. So far as other three accused-appellants Ombeer, Sauraj and Momeen are concerned, it appears from the evidence of P.W.1 and recovery memo Ext. Ka-8 and other prosecution witnesses that no sample of the recovered contraband article was taken from them nor the same was sealed or sent to Vidhi Vigyan Prayogshala and P.W.5 Jairaj Singh has also stated that no evidence was collected by him during the course of investigation that the three accused had purchased the contraband article from the other accused Manga, Brij Mohan and Ram Kumar and no money was recovered from them when they were arrested by the police on their personal search. No doubt they were arrested on the spot but to say that the said three accused were involved in the sale and purchase of the contraband article is not proved beyond reasonale doubt by the prosecution, hence they are given benefit of doubt. Thus their conviction and sentence by the trial court appears to be against the evidence on record. Hence their conviction and sentence by the trial court is hereby set-aside.
26. The accused Manga and Ram Kumar are in jail. They shall serve out the rest of the sentence awarded by the trial court whereas the accused Sauraj and Momeen who are in jail, they shall be released from jail forthwith if not wanted in any other case. The accused Ombeer is on bail. He need not to surrender. His bail bond is cancelled and sureties are discharged.
27. The appeals of accused-appellants Manga and Ram Kumar hereby dismissed and their conviction and sentence by the trial court is hereby upheld.
28. The appeals of accused-appellant Ombeer, Sauraj and Momeen stand allowed. They shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of the provisions of Section 437-A Cr.P.C.
29. Let the lower court record with the present order be transmitted to the trial court concerned for necessary information and it's compliance forthwith.
Order Date :- 26.04.2019/Gaurav