Allahabad High Court
Mohd. Muqueem vs State Of U.P. on 15 May, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 42 Case :- CRIMINAL APPEAL No. - 1273 of 2010 Appellant :- Mohd. Muqueem Respondent :- State Of U.P. Counsel for Appellant :- Mansoor Ahmad,D S Mishra Counsel for Respondent :- Govt. Advocate Hon'ble Rajiv Lochan Mehrotra,J.
(1) The judgment and order dated 15.1.2010 passed by Additional Sessions Judge, Court No. 6, Kanpur Nagar in Special Session Trial No. 827 of 2000 arising out of case crime no. 40 and 41 of 2000 and Session Trial No. 1068 of 2002 arising out of case crime No. 38 and 39 of 2000 convicting the appellant for 12 years rigorous imprisonment coupled with a fine of Rs. 100000/- (one lac) under Section 20(B)(ii)(c) N.D.P.S. Act, four years rigorous imprisonment and a fine of Rs. 20,000/- under Section 21(B) N.D.P.S. Act, five years rigorous imprisonment and a fine of Rs. 5000/- under Section 307/34 I.P.C. and two years rigorous imprisonment and a fine of Rs. 5,000/- under Section 25 of the Arms Act, is under challenge in the present criminal appeal.
(2) Brief facts of the case are that on 30.1.2000 Inspector, Hari Shankar Shukla alongwith constable Ramesh Chandra Yadav, constable Shiv Shankar Tiwari, constable Mohd. Mujeeb, constable Kashi Prasad and constable Ram Murat Tiwari was busy in maintaining the law and order and also in search of wanted criminals. When the team arrived at the Eidgah crossing they received an information through the informer to the effect that some criminals having illicit arms are coming from the side of Sujat Ganj towards railway south colony. Believing on such information, S.I. M.L. Verma, constable Suresh Chand Chaurasiya, S.I. Netrapal Singh,S.I. Rakesh Kumar Trigunayat and constable Lal Bahadur were summoned for the purpose. The team also tried to arrange some independent public witness but none became ready. The Police team hide itself against the wall of C.O.D. School. After sometime on the pointing out of the informer the team noticed some miscreants coming from the side of the Sujat Ganj. The police team asked them to stop but instead they opened fire on the team. Two bullets were fired at the team while the third one resulted into a misfire. They were chased by the team and at about 2.30 PM, the police team succeeded in apprehending one of the miscreants. However, the rest of them managed to flee away from the spot.
(3) The apprehended man disclosed his name as Muqeem of village Baboopurva, District Kanpur Nagar and told the raiding team that he was having illegal charas, smack and a country made pistol with him. The apprehended man Muqeem could disclose the name of only one of the miscreants as Islam @ Bengali of village Baboopurva.
(4) After noticing the fact that the accused was having illegal charas and smack with him, he was apprised of his right to be searched before a magistrate or a gazetted officer but the accused expressed his trust on raiding team and gave his consent to be searched by them. He was searched on the spot. A country made pistol of 315 bore with a spent cartridge in it alongwith two live cartridges from the right pocket of the pant of the accused were recovered. Apart from it, seven plates of charas, wrapped in a polythene, having a total weight of 3 kg., was also recovered from a bag held by him in his left hand. 50 tiny packets of smack were also recovered from the left pocket of his pant. 30 gm. charas was removed from the recovered plates of charas as sample while all the 50 tiny packets of the smack were sealed together in separate packets. All the recovered goods were sealed on the spot. Recovery memo was prepared and thenafter the accused alongwith the recovered goods were taken to the police station.
(5) On the basis of the recovery memo first information report was lodged against the appellant on 30.1.2000 at 4.30 PM under Section 307 I.P.C., 25 Arms Act, 18/20 N.D.P.S. Act and 20/22 N.D.P.S. Act. The investigation came into action. The sample of the charas and the entire smack was sent to the forensic lab for its verification. The Investigating Officer collected the evidence including the verification report of the forensic lab and thenafter submitted charge sheet against the appellant. Charges were framed against the appellant under Section 20(B)(ii) and 21 of the N.D.P.S. Act, 307/34 I.P.C. and 25 Arms Act which he denied and claimed trial.
(6) In support of the charges prosecution examined PW-1 Inspector Hari Shankar Shukla and PW-2 Negpal Singh as witnesses of facts. PW-3 HCP Dharmendra Kumar Mishra proved the FIR and copy of the G.D. He also admitted this fact that the original G.D. No. 41 has now been destroyed and thus is not available. PW-4 constable Pavan Kumar transported the recovered article to the forensic lab for its test. PW-5 constable Kailash Narayan lodged the FIR in crime No. 38 and 39 of 2000 and proved it while PW-6 constable Rammilan proved the papers of investigation which was conducted by S.I. Balbir Singh on the ground that Balbir has now expired.
(7) Statements of the appellant under Section 313 Cr.P.C. were recorded wherein he denied any sort of recovery and said that on account of the enmity he has falsely been implicated in the matter. The police arrested him from his house and involved thereafter in a false recovery case.
(8) Only two witnesses of facts have been examined by the prosecution to prove the charges levelled against the appellant. It is specifically argued by learned counsel for the appellant that in the instant case Section 50 of the N.D.P.S. Act has not been complied with in its literal term. It is further argued by learned counsel that in the recovery memo it is nowhere mentioned that the accused was told about his legal right as enshrined under Section 50 of the N.D.P.S. Act. Though, it is averred in the recovery memo that after arrest, the accused expressed his trust over the raiding team and said that the raiding team itself can search him but the complainant Hari Shankar Shukla, examined as PW-1 before the court, admitted this fact that the constable Lal Bahadur was directed to summon a magistrate or a gazetted officer but no such officer could be managed. However, it is further stated by this witness that as the appellant had consented to be searched by the raiding team, therefore, he was searched as per law.
(9) Had there been any consent of the appellant with regard to the search by the raiding team itself, the raiding team could not have made any effort to arrange a gazetted officer or a magistrate.
(10) Hon'ble Apex Court in Arif Khan @ Agha Khan vs. State of Uttarakhand in Criminal Appeal No. 273 of 2007 decided on 27.04.2018 has observed that non-compliance of the mandatory provisions prescribed under Section 50 of the N.D.P.S. Act is fatal to the prosecution.
(11) Reliance has also been placed on Narcotics Central Bureau Vs. Sukh Dev Raj Sodhi Laws (SC)-2011-5-54 para - 3 of which is extracted hereinunder:-
"The obligation of the authorities under Section 50 of the N.D.P.S. Act has come up for consideration before this Court in several cases and recently, the Constitution Bench of this Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609] has settled this controversy. The Constitution Bench has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 must be very strictly construed.
From the perusal of the conclusion arrived at by this Court in Vijaysinh Chandubha Jadeja's case, it appears that the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazetted officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazetted officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate."
(12) In the instant case, as per evidence available on record and the contents of recovery memo the personal search of the appellant was also taken by the raiding team, therefore, as per law laid down by Hon'ble the Apex Court in Vijaysinh Chandubha Jadeja (Supra) It cannot be said that the prosecution has complied the provision of Section 50 N.D.P.S Act.
(13) It is next contended that the recovered contraband was not weighed on the spot by the arresting team. The contention is supported by the narration made in the recovery memo and the statements of the prosecution witnesses. As per the evidence available the recovered goods were not weighed on the spot and the weight was assessed as per their speculation. As the recovered narcotic contraband was not weighed on the spot, therefore, it cannot be said that the total weight of the alleged contraband falls within the purview of the commercial quantity. Apart from it, seven plates of charas are alleged to have been recovered from the possession of the accused but as per recovery memo and the statement of PW-1 Hari Shankar Shukla, only 30 gm. charas was removed from one of the plates. Therefore, it cannot be said that the forensic lab has given a verification report with regard to all the plates or all the recovered contraband.
(14) The alleged recovered smack was also not weighed on the spot. It is specifically stated by PW-1 Inspector Hari Shankar Shukla that the entire smack recovered from the possession of the appellant was sent to the forensic lab for its verification.
(15) The recovery and the arrest has categorically being challenged by the appellant in the instant case. When PW-5 constable Kailash Narayan was asked specifically as to which time the accused was brought to the police station for the first time by the police after his arrest, PW-5 Kailash Narayan, who lodged the report in the instant case, could not tell it. Though PW-6 constable Rammilan proved the investigation paper which was conducted by S.I. Balbir Singh, but it is nowhere averred by him that he had ever been posted with S.I. Balbir Singh before his death. He proved these papers in a very flimsy manner. This witness was not posted in the said police station wherein all these FIRs were lodged.
(16) Admittedly the Investigating Officer Balbir Singh was junior to the complainant who was In-charge of the police station and was of the rank of Inspector police. Therefore, as per law laid down by Hon'ble Allahabad High Court in Raghubir Vs. State of U.P., 1995 (32) ACC 216 the investigation done in the instant case could not be termed as fair investigation rather it will be treated as tainted and no reliance could be placed upon it.
(17) In the instant case, neither the police team nor any of the accused received any injury. It is specifically averred by the prosecution witnesses that on a chase all the three accused opened fire but the police team in retaliation did not open any fire. The prosecution could not proved the fact that the alleged country made pistol and the cartridges recovered from the possession of the appellant were produced before the magistrate during the course of remand.
(18) Therefore, in these circumstances, it shall not be proper to uphold the conviction of the appellant. Hence the conviction and sentence dated 15.1.2010 passed in this respect against the appellant is liable to be set-aside.
(19) Accordingly, the appeal is allowed and the impugned order of conviction and sentence dated 15.1.2010 passed against the appellant is set aside and he stands acquitted. The appellant is on bail. His bail bonds are cancelled and sureties are discharged. The appellant is directed to submit his personal bonds along with two sureties each in the like amount to the satisfaction of the court concerned in compliance of Section 437-A Cr.P.C. within 15 days from the date of the judgment.
(20) Let a copy of this judgment alongwith the record of the case be sent back to the court below for needful action and necessary entries in the relevant registers.
Order Date :- 15.5.2018 BKM/-