Allahabad High Court
Ram Autar Shivharey And Another vs State Of U.P. on 18 July, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- CRIMINAL APPEAL No. - 6335 of 2008 Appellant :- Ram Autar Shivharey And Another Respondent :- State Of U.P. Counsel for Appellant :- Ikas Tiwari,Birendra Singh,Dwivedi S.C.,Jai Prakash Tripathi,Jitendra Singh,K.K. Dwivedi,K.Kumar Tripathi,P.K. Shahi,R.K. Singh,S.C. Dwivedi,S.N.Pandey,Sanchita Srivastava,Vijay Bahadur Shivhare Counsel for Respondent :- Govt. Advocate Connected with Case :- CRIMINAL APPEAL No. - 6620 of 2008 Appellant :- Shaheed Respondent :- State Of U.P. Counsel for Appellant :- D.S. Parmar,Jai Prakash Tripathi Counsel for Respondent :- Govt. Advocate with Case :- CRIMINAL APPEAL No. - 8383 of 2008 Appellant :- Pawan Kumar Alias Raju Respondent :- State Of U.P. Counsel for Appellant :- Vijay Bahadur Shivhare,Km. Rachna Tiwari Counsel for Respondent :- Govt. Advocate Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsels for the appellants, learned A.G.A. for the State and perused the record of this appeal.
By way of instant criminal appeals, challenge has been made to the validity and sustainability of the judgment and order dated 30.08.2008 passed by Additional Sessions Judge (F.T.C. court no.2), Hamirpur in Special Case No.33 of 2003, State Vs. Ram Autar Shivharey and others, arising out of case crime no.173 of 2003, police station- Biwar, District- Hamirpur, whereby each of the appellants has been convicted and sentenced to undergo 10 years R.I. coupled with fine of Rs.1,00,000/-, with default stipulation to suffer additional rigorous imprisonment for one year for offence U/s 8/20 N.D.P.S. Act.
Facts relevant for adjudication of these appeals appear to be that S.I. Aditya Kumar Dwivedi P.W.2 lodged report on the basis of arrest and recovery memo, Exhibit Ka-1, at Police Station- Biwar, District- Hamirpur on 11.10.2003 at about 5.30 P.M. regarding recovery of 90 Kg. 'ganja' and arrest of four accused, who are the present appellants before this Court with averments that the informant- S.I. Aditya Kumar Dwivedi along with Incharge S.O.G., Constable Jai Prakash Maurya, Constable Raj Kumar, Constable Aftab Ali, Constable Acchey Lal were busy searching for the miscreants of Moolchandra Pal gang leader D-9 by his Government jeep UP 91 A 6665 with Constable Driver Mahendra Singh. When they arrived at village- Luhari from Village- Modaha, they received tip off information from some informer to the effect that sometime before few persons in Tata Sumo jeep have gone to Patanpur possessing 'ganja'- the contraband- and the same shall be unloaded at the house of Ram Autar Shivharey at Patanpur. The aforesaid police party tried to arrange for some public witness but no one was ready to become witness, therefore, the police party rushed towards Patanpur and the police jeep was parked in front of house of Jhandu Singh, when the informer pointed out the specific vehicle, which brought ganja; at the same time, all the police personnel including the informant saw one man standing by opening rear door of vehicle Tata Sumo and three persons were unloading bags. The three persons took out from the vehicle one bag each in their hand and proceeded towards the house, when the police party intercepted them near the main gate of the house at about 2 p.m. (on 11.10.2003) and also apprehended at the same time, the person, who had opened the rear door of the Tata Sumo vehicle. On being asked about their names, each of the appellants present spelled his name along with the parentage and addresses, whereupon, the police party asked that they have information that the accused are possessing contraband- ganja, therefore, in case, they opt for their search being made either by the police party or by some gazetted officer or a magistrate, whereupon, all the four accused agreed to be searched by the police party itself and consent memo was prepared, which is Exhibit Ka-2. Thereafter search was carried out, whereupon, one bag each was found in the hands of Ram Autar Shivharey, Pawan @ Raju and Neeraj Gupta weighing 30 kgs. each thus aggregating 90 Kgs. in all. At the same time accused- Shaheed told that he brought the ganja upto this place by the vehicle Tata Sumo and all the accused told that they have brought it from Ranikhet, Uttranchal and all the accused have business in partnership. On being asked about the license for possessing ganja, the accused could not show any authority or license to keep and possess ganja. All the four accused were formally arrested and a sample of 250 grams from each of the bag was taken out and the same was kept in a cloth and wrapped in a paper and sealed and the bags in which the ganja was recovered were also separately sealed. Arrest memo was prepared on the spot. The police party also took in its possession the vehicle used for conveying ganja numbered UP 78 Y 2786. The entire memorandum was written on memo recovery and arrest and signature of all the police personnel and the accused were obtained on it and each accused was given separate copy of the memo.
On the basis of arrest and recovery memo, case was registered at the aforesaid police station at aforesaid date and time against the accused persons and they were kept in police lock-up and the recovered contraband along with the sample was also kept in the police 'Malkhana' and a case was registered against against the accused- appellants at case crime no.173/2003, under Sections 18/20 N.D.P.S. Act, Police Station- Biwar, District- Hamirpur. Check F.I.R. is Exhibit Ka-6.
The investigation was entrusted to P.W.3 Shyam Lal Bhaskar, who took over the investigation on 12.10.2003 and noted contents of the check F.I.R., C.D. and the case diary etc. recorded statement of the accused and the prosecution witnesses and prepared site plan at the instance of Constable Aftab Ali, Exhibit Ka-4 and recorded statement of various persons and the sample of the contraband was sent to Forensic Science Laboratory, Agra for chemical analysis through Constable- Devi Singh. After completing the investigation, charge- sheet Exhibit Ka-5 was filed against the accused.
Subsequently, another Investigating Officer Sadhu Ram of Police Station- Biwar obtained the report of the Forensic Science Laboratory, Agra on 23.12.2003 and noted contents of the same in the supplementary case diary.
Consequently, the trial ensued before the Additional Sessions Judge (Fast Track Court- Ist), Hamirpur. The trial court after hearing both the sides on point of charge framed charge against all the four accused under Section 8/20 N.D.P.S. Act. The charge was read over and explained to the accused, who abjured the charge and opted for trial.
The prosecution was required to adduce testimony in proof of the charge, whereupon, four witnesses in all were produced. Brief reference of the same is- P.W.1 Accheylal and P.W.2 Aditya Kumar Dwivedi are the constable and the informant, respectively, whereas, Shyam Lal Bhaskar P.W.3 is the Investigating Officer and Constable Ravichandra Pandey P.W.4 is the formal witness, Head Moharir Constable.
After closure of the evidence for the prosecution, statement of the accused was recorded, whereupon, they claimed their implication false. Appellant- Ram Autar Shivharey submitted that he was caught from his home, whereas Pawan Kumar alias Raju said that the S.O.G. Sub- Inspector used to pressurize him to drive his vehicle. Appellant- Neeraj Gupta submitted that he was arrested by the police one day prior to the incident for inquiry and falsely implicated him with this case, whereas, appellant- Shaheed has submitted that the S.O.G. personal used to take vehicle of his brother and on being refused service, they became angry. He is not driver. He was caught from him home.
In defence accused have got examined D.W.1 Maiyadeen.
Thereafter argument pros and cons was heard by the trial court and after appreciation of the facts and circumstances and the evidence, the trial court returned aforesaid finding of conviction, whereby, it convicted each of the appellants under Section 8/20 N.D.P.S. Act and sentenced them to 10 years R.I. (each) coupled with fine Rs.1,00,000/- and in case of default, the concerned convict was required to suffer additional imprisonment for one year, vide its judgment and order dated 30.08.2008.
Consequently, this appeal.
Contention in brief has been raised on behalf of the appellants that in this case the entire proceeding is vitiated. Arrest and recovery memo is itself doubtful. The mandatory compliance of the relevant sections of the N.D.P.S. Act have not been made. Not a single word was spelled by any of the accused regarding the weight of the quantity recovered from the bags, but it was the afterthought of the informant that he cooked up a false and fabricated story that the accused told him that there is 30 kgs. of ganja in each of the three bags. The entire recovery and arrest memo is silent on this point. Neither P.W.2 Aditya Kumar Dwivedi- the informant, nor the Investigating Officer P.W.3 Shyam Lal Bhaskar ever got weighed the actual quantity of 'ganja' contained in each bag. Even the trial court failed to take notice of the aforesaid aspect and based its decision on conjecture and surmises. The entire judgment becomes illegal and erroneous and no finding of conviction can be recorded on such shaky evidence. Appellants are innocent. Nothing infact has been recovered from their possession. The story is not supported by any independent public witness. If prior information was available, then why the public witness was not arranged for conducting search of the accused. In the absence of proper weighing of the alleged contraband how can it be established that the entire contraband was one of the commercial quantity.
Per contra, learned A.G.A. for the State has submitted that all the formalities have been completed. There is no violation of any mandatory provisions of the N.D.P.S. Act. The search in question is not that of person but from the bag which the three or the four accused were possessing and they were in the process of unloading the same at the house of accused- Ram Autar Shivharey and the driver of Tata Sumo was holding the rear gate in open position when the three bags weighing 30 kgs. of ganja each were unloaded from the vehicle in question. Each of the witnesses has categorically proved the recovery and the arrest of the appellants on 11.10.2003 at about 2.00 P.M. at Patanpur. The Chemical Examination Report also confirms to the fact that the recovered quantity/contraband is 'ganja'. All these material evidence and cogent circumstances were duly considered by the trial court and finding of conviction was rightly recorded and appropriate sentence passed.
Upon consideration of the entirety and the allegations and its reply obviously, the moot point that arises for the adjudication of all the three appeals relates to fact that whether the prosecution has been able to prove its case beyond all reasonable doubt?
At the beginning, from the bare perusal of the first information report, it is gathered that some S.O.G. team headed by the informant- S.I. Aditya Kumar Dwivedi- P.W.2- was in search of some gang leader when it received tip off information at village- Luhari that some persons possessing ganja kept in a Tata Sumo vehicle have left for village- Patanpur and the ganja is to be unloaded there at the house of one Ram Autar Shivharey. The police party tried to arrange public witnesses, but no one was ready to become a witness, consequently, the police party along with the informer rushed to Patanpur where at the pointing out of the informer, the police party located the Tata Sumo vehicle and nabbed four persons on the spot- the present appellants and recovered three bags each from accused- Ram Autar Shivharey, Pawan @ Raju and Neeraj Gupta while the police party also apprehended fourth person- Shaheed- the driver of the Tata Sumo vehicle numbering UP 78 Y 2786. Each of the accused was informed that information has been received that they are possessing 'ganja' as such each of them was given option whether he will opt to be searched by the police party itself or before any gazetted officer or a magistrate, whereupon they all agreed to be searched by the police party itself. Consequently, the consent memo regarding the same was prepared on the spot, which is Exhibit Ka-2 and search was made, whereupon, three bags containing 'ganja' weighing approximately 30 kgs. each totalling 90 kgs. in all were recovered from the possession of Ram Autar Shivharey, Pawan @ Raju and Neeraj Gupta. The informant took out samples from these three bags in the quantity of approximately 250 grams from each bag and kept it under seal. All the three bags were separately sealed on the spot and recovery memo, Exhibit Ka-1, was prepared. Arrest memo was also prepared, which is Exhibit Ka-3. The accused were taken to the police station where a case was lodged under Section 18/20 N.D.P.S. Act at Police Station- Biwar at case crime no.173 of 2003 on 11.10.2003 at 5.30 P.M. The investigation ensued and the statement of various persons and the witnesses including the statement of the accused was also recorded by the Investigating Officer P.W.3 Shyam Lal Bhaskar. He collected the sample of contraband and sent it for chemical examination to Forensic Science Laboratory, Agra. The Chemical Analyst Report is Exhibit Ka-8.
The Investigating Officer also prepared the site plan, Exhibit Ka-4 where arrest and recovery was affected and filed the charge-sheet, Exhibit Ka-5 against the accused-appellants.
Both the informant P.W.2 and the Constable (P.W.-1) Achchelal of S.O.G., who formed the police team have confirmed to the aforesaid facts in their testimony before the trial court. The Investigating Officer P.W.3 Shyam Lal Bhaskar has also proved very manner of his investigation but these witnesses could not prove properly the actual weight of the recovered 'ganja' as it was never weighed. Thus, the argument advanced by the counsel for the appellants carries substance to the ambit that the prosecution failed to prove the total weight of the recovered contraband- ganja- that it infact weighed 90 kgs. This argument is supplemented further by adding that in the trial court during trial when the three bags containing ganja were opened, the same were not weighed nor got weighed at that point of time by the trial court itself. Thus, it was never ascertained with accuracy as to what specific quantity is kept in each of the three bags and to claim that the accused themselves told about this fact that there is 30-31 kgs. of ganja in each of the bags is found not correct as the recovery memo nowhere contains such description. However, it is admitted to P.W.2 Aditya Kumar Dwivedi that he did not weigh the recovered ganja. Attention of this Court was engaged to the recovery and arrest memo, Exhibit Ka-1, wherein also there is no mention or whisper about the fact that any of the accused ever told about any specific weight of the ganja kept in the bag.
I upon careful perusal of the recovery memo, Exhibit Ka-1, also could not find any such description, whereby, the accused themselves told about the weight of ganja kept in the bags. Only this much has been mentioned that ganja in the three bags weighs approximately 30 kgs. in each bag totaling 90 kilograms in all. It is nowhere mentioned or described that any of the accused of himself made any disclosure about the weight of the ganja kept inside the three bags. May be that the recovered contraband was not weighed by the informant or the Investigating Officer, but the same was brought before the trial court, then opened and seen by the trial court, but the same was not got weighed at that juncture by the trial court. Now, this fact and specific point becomes undisputed and virtually admitted that the recovered contraband in the three bags was not weighed by the police authorities concerned and the trial court. Thus, the entire quantity of 'ganja' remained unascertained.
This being the admitted position, the burden of proof has not been discharged properly by the prosecution and it failed to establish the actual quantity of the ganja to be of the magnitude of 'commercial quantity' thus fact of actual weight of ganja becomes highly dubious and a vital fact is rendered not proved. The initial burden of proof has not been discharged by the prosecution. Therefore, to say that the recovered quantity was 'commercial quantity' is not acceptable fact, under the facts and circumstances of the case.
Now, in the absence of proof of the actual weight of the recovered quantity, the advantage goes in favour of the accused- appellants that it should be taken to be 'small quantity' because ganja in the three bags shall be taken and confined to 'small quantity', therefore, the conviction and sentence recorded by the trial court under Section 8/20 of the N.D.P.S. Act is liable to be modified and confined to 8/20(A) of the N.D.P.S. Act, which provides for punishment involving cases of 'small quantity' with rigorous imprisonment for a term, which may extend to one year or with fine which may extend to Rs.10,000/-, or with both. Accordingly, the conviction recorded by the trial court is liable to be modified from one under Section 8/20 N.D.P.S. Act to Section 8/20(A) of the N.D.P.S. Act. At this stage, it has been urged on behalf of all the accused- appellants that all the accused have suffered a lot during the trial and during pendency of this appeal, they have suffered detention also. The three accused-appellants, namely, Ram Autar Shivharey, Pawan Kumar alias Raju and Neeraj Gupta have suffered detention for approximately 7 years, however, accused- appellant Shaheed has suffered detention for about four months.
Noticeable that this offence took place in the year 2003 when the penalty/punishment prescribed under aforesaid Section 20(A) of the N.D.P.S. Act was sentence of rigorous imprisonment for a term which may extend to six months or with fine which may extend to Rs.10,000/- or with both. This Section was amended with effect from 01.05.2014 and in place of six months, one year was substituted as the punishment inter alia, therefore, the sentence is to be considered in accordance with the provisions existing in the year 2003, that is to say that the period of imprisonment is extendable upto six months or fine or with both.
Appellants- Ram Autar Shivharey, Neeraj Gupta and Shaheed- are present in jail and appellant- Pawan Kumar @ Raju- is on bail. Appellants Ram Autar Shivharey, Neeraj Gupta and Pawan Kumar @ Raju have already served sentence for more than seven years. Appellant- Shaheed has also served sentence about four months.
Considering the facts and circumstances of the case and the period already suffered by each of the accused in detention in this case, on point of sentencing it is provided that each of the appellants shall be punished with rigorous imprisonment for two months, which sentence has already been suffered by all the accused appellants as herein above.
Therefore, the judgment and order of conviction and sentence dated 30.08.2008 passed by Additional Sessions Judge (F.T.C. court no.2), Hamirpur in Special Case No.33 of 2003, State Vs. Ram Autar Shivharey and others, arising out of case crime no.173 of 2003, police station- Biwar, District- Hamirpur is accordingly modified to the extent as above and these appeals are accordingly partly allowed, as aforesaid.
Appellants- Shaheed, Ram Autar Shivharey and Neeraj Gupta are in jail. They be released forthwith, if not wanted in connection with any other case.
Since Pawan Kumar @ Raju is on bail and he too has completed the sentence imposed, he need not surrender, his bail bonds are hereby cancelled and sureties are discharged.
However, all the appellants will comply with the provisions of Section 437-A Cr.P.C.
Let a copy of this order be sent to the lower court concerned for its intimation and necessary follow-up action.
Dt.18th July, 2019.
Raj