Allahabad High Court
Anil Kumar Jaiswal And Another vs State Of U.P. on 9 January, 2015
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- CRIMINAL APPEAL No. - 4531 of 2003 Appellant :- Anil Kumar Jaiswal And Another Respondent :- State Of U.P. Counsel for Appellant :- Arun Kumar Tewari,A.K. Tewari,Amit Misra,Amit Sinha,Arun Kumar Mishra,Aseem Kumar Rai,Dilip Kumar,Mridul Tripathi,P.C.Shukla Amicus Curie,R.S. Shukla,Santosh Kumar Singh,Sarvesh,Shashank Tripathi,Viresh Mishra Counsel for Respondent :- A.G.A.,N.I.Jafri,Sanjay Kumar Singh Hon'ble Akhtar Husain Khan,J.
(Delivered by Hon'ble Akhtar Husain Khan,J) Present criminal appeal has been filed by accused-appellants Anil Kumar Jaiswal Jaiswal and Jagram against judgement and order dated 16.9.2003 passed by Special Judge (N.D.P.S. Act), Kanpur Nagar in Session Trial No. 509 of 1992 (State of U.P. Vs. Anil Kumar Jaiswal and others), under Sections 18/20 N.D.P.S. Act., P.S. Kakadev, District Kanpur Nagar whereby learned Special Judge has convicted both accused-appellants Anil Kumar Jaiswal and Jagram for offence under Section 20(B)(II)(C) N.D.P.S. Act and has sentenced each of them thereunder to undergo rigorous imprisonment for 15 years with fine of Rs. 1 lac. In default of payment of fine each of accused-appellant has been ordered to undergo further rigorous imprisonment for 1 1/2 years. The learned Special Judge has directed that period of detention already undergone by accused-appellants shall be set off against sentence of imprisonment awarded to accused-appellants.
Learned counsel Sri Arun Kumar Tewari appeared for accused-appellants. Learned AGA appeared for State of U.P. Learned Special Counsel Sri Sanjay Kumar Singh appeared for Union of India.
I have heard learned counsel for the parties and perused records.
In brief relevant fact for determination of this appeal is that complaint has been filed on behalf of Union of India through Assistant Collector (Prevention) Customs & Central Excise and Incharge of Narcotics Cell, Sarvodaya Nagar, Kanpur Nagar under Section 20/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 before Chief Metropolitan Magistrate, Kanpur Nagar against accused Anil Kumar Jaiswal, Ram Chandra Yadav, Jagram, Shri Mohan Yadav and Shri Ram.
According to complaint version of prosecution is that a reliable information was received that contraband Narcotic drugs are being stored in a house situated at Mohalla R.S. Puram, P.S. Kakadev and are being transported in a car for its supply to different persons in Kanpur City and outside for its illegal sale whereupon a raid was organised on 25.8.1988 by officials of Customs & Central Excise, Department Kanpur Nagar. Sri J.S. Saxena, Inspector Custom & Central Excise Narcotic Drugs and Psychotropic Substances, Sarvodai Nagar, Kanpur Nagar along with his team members mentioned in complaint took position in Mohalla R.S.Puram behind Rawatpur Station on 25.8.1988 at 1.30 p.m. At about 2.00 p.m. an Ambassador car bearing registration no. U.P. G 3627 was detected proceeding from the side of Mohalla R.S. Puram. Said car was asked to stop near Kaka deo. But driver of car instead of stoping car tried to speed up car. Inspector J.S. Saxena and his team chased the said car and got it stopped whereupon all the three persons including driver sitting in the car tried to ran away after having stopped car at R.S. Puram Tiraha but all of them were apprehended by the team. Thereafter, they disclosed their names as Anil Kumar Jaiswal, Ram Chandra Yadav and Jagram with their addresses mentioned in recovery memo as well as in complaint. Thereafter, team made search of car whereupon two bags of rexine containing Charas were recovered from the back seat of car while Ganja kept in packets as well as in one small bag was recovered from dicky of car. Thereafter, recovered Charas and Ganja were weighted after having brought to the office of department. Weight of Charas was 8.800 Kgs and weight of Ganja was 115.750 Kgs. The recovered Charas and Ganja were duly seized by aforesaid inspector and his team and were sealed after taking out three representative samples for chemical analysis. On interrogation all the aforesaid three persons disclosed to team that seized drugs have been loaded in car from a house situated in Mohalla R.S.Puram by two other persons, whereupon, aforesaid team of Inspector J.S. Saxena raided the house situated in Mohalla R.S. Puram at the pointing out of arrested aforesaid three accused. On search, no contraband goods was found in the house but two persons, who disclosed their names Sri Mohan Yadav and Sri Ram were present there. They confessed that they have loaded contraband goods in car with aid of three persons sitting in car. They further disclosed that drugs were kept in house by one Badkau. They are paid sevents of said Badkau and they are engaged in illegal trade of contraband. Thereafter, having completed necessary formalities all the above five accused were arrested and produced before competent officer on the same day and sealed contraband goods were deposited in godown of department. Later on, all arrested accused were produced on 26.8.1988 before Chief Metropolitan Magistrate for judicial remand along with necessary papers and case properties.
Thereafter, on 31.8.1988, complaint (Ex. Ka-9) was filed by Sri R.P.Tamta, Assistant Collector (Prevention) Customs & Central Excise, Kanpur Nagar before Chie Metropolitan Magistrate, Kanpur Nagar whereupon C.M.M., Kanpur Nagar took cognizance and summoned all accused but accused Mohan Yadav and Shri Ram did not turn out and were absconding. Therefore, their case was separated and after compliance of Section 207 Cr.P.C., Chief Metropolitan Magistrate, Kanpur Nagar committed the case of accused Anil Kumar Jaiswal, Ram Chandra Yadav and Jagram to the court of session for trial whereupon Session Trial No. 509 of 1992, State of U.P. Vs. Anil Kumar Jaiswal and others was registered. Later on said session trail was transferred to the court of IV Additional Sessions Judge, Kanpur Nagar, who framed charges against all accused for offence under Section 20(1)B of N.D.P.S. Act and Section 60 (a) of U.P. Excise Act. All the accused pleaded not guilty and claimed to be tried.
Prosecution examined P.W. 1, Moris William Henari, Inspector Central Excise, Kanpur Nagar, P.W. 2, J.S. Saxena, Superintendent Head Quarter, Sarvodai Nagar, Kanpur Nagar, P.W. 3, Ramesh Chandra Shukla, Superintendent Central Excise Division-I, Kanpur Nagar and P.W. 4, Umesh Chandra Shukla, Superintendent Central Excise, Moradabad.
After prosecution evidence statements of accused-appellants Anil Kumar Jaiswal and Jagram were recorded under Section 313 Cr.P.C. Accused Ram Chandra Yadav died during trial. The case abated against him.
Accused-appellants Anil Kumar Jaiswal and Jagram stated in their statements under Section 313 Cr.P.C. that they have been falsely implicated.
D.W. 1 Ram Chandra Yadav was examined on behalf of accused-appellants in defence.
Learned Special Judge (N.D.P.S. Act) heard arguments of the parties and passed impugned judgement and order dated 16.9.2003 whereby he has convicted and sentenced accused-appellants as mentioned above.
Learned counsel for the accused-appellants contended that accused-appellants are innocent and have been falsely implicated.
Learned counsel for the accused-appellants contended that mandatory provisions of Sections 42 and 50 of N.D.P.S. Act have not been complied with, therefore, recovery alleged by prosecution is vitiated and cannot be relied.
Learned counsel for the accused-appellants contended that Narcotric drug alleged to have been recovered, have not been produced before trial cout.
Learned counsel for the accused-appellants contended that learned trial court has not considered the evidence on record properly and judgement and order passed by trial court is against evidence as well as against law.
Learned counsel for the accused-appellants prayed that appeal should be allowed and accused-appellants should be acquitted.
Learned counsel for the accused-appellants has relied upon following judicial pronouncements :-
1. Roshan Vs. State of U.P., 2004 (Supp.) ACC 174 : 2004 (1)JIC 83.
2. Heeramani Sahu Vs. State of Chhattisgarh, LAWS (CHH)-2013-5-7 / MPHT (CHH)-2013-3-73.
3. Jitendra Singh Rathore Vs. State of U.P., 2014 (1) JIC 954 (All).
4. Suresh & Others Vs. State of Madhya Pradesh, 2013 (1) JIC 745 (SC).
5. Sukhdeo Singh Vs. State of Hayana, 2013 (1) JIC 846 (SC).
Learned Special counsel for Union of India contended that conviction recorded by trial court is based on evidence and is in accordance with law.
Learned Special counsel further contended that provisions of Sections 42 and 50 of N.D.P.S. Act are not applicable on the facts of this case. Learned Special counsel contended that accused-appellants have made confession before departmental authorities under Section 67 of N.D.P.S. Act and confession made by accused-appellants under Section 67 of N.D.P.S. Act can be relied upon to convict accused-appellants.
Learned Special counsel for Union of India has relied upon following judicial pronouncements.
1. Raj Kumar Agarwal Vs. Union of India and another, 1990 ACC 443.
2. Kanhaiyalal Vs. Union of India, 2008 (1) JIC 230 (SC).
3. Pon Adithan Vs. Dy. Director, Narcotics Control Bureau, Madras, 1999 ACC 330.
4. Ram Singh Vs. Central Bureau of Narcotics, 2011 (3) SCC (Crl.) 181.
5. State of Haryana Vs. Jarnail Singh and others, 2004 (49) ACC 473.
6. G. Srinivas Goud Vs. State of A.P., 2005 SCC (Crl.) 1999.
Learned AGA supported arguments advanced by learned Special Counsel for Union of India.
I have considered the submissions made by learned counsel for the parties.
I have perused case laws cited by the parties.
P.W. 1, Moris William Henari, P.W. 2, J.S. Saxena and P.W. 3 Ramesh Chandra Shukla, are witnesses of recovery and arrest of accused-appellants and deceased co-accused Ram Chandra Yadav.
P.W. 1, Moris William Henari, Superintendent Central Excise, Kanpur Nagar has stated in his statement on oath that on 25.8.1988, he was posted as Inspector in Central Excise Collectrate Narcotics Branch. He has further stated that on 25.8.1988 at about 1.30 p.m., he took position on the direction of superior officer behind Rawatpur station in Mohalla R.S. Puram. After sometime a dark brown Ambassador car bearing no. U.P. G-3627 was seen coming from the side of Mohalla R.S.Puram. Thereafter, said car was chased and got stopped whereupon three persons including driver sitting in the car tried to ran away after having stopped car but all of them were apprehended. They disclosed their names Anil Kumar Jaiswal Jaiswal, Ram Chandra Yadav and Jagram. Thereafter, in their presence search of car was made whereupon two bags of rexine containing Charas were recovered from the back seat of car, while Ganja kept in packets as well as in one small bag was recovered from dicky of car. Thereafter, said three persons were brought to office Sarvodaya Nagar along with articles recovered from their possession, where recovered Charas and Ganja were weighted. Weight of Charas was 8.800 Kgs and weight of Ganja was 115.750 Kgs.
P.W. 1, Moris William Henari has further stated in his statement on oath that the sample of each drug was taken and kept in envelopes and envelopes were sealed with departmental seal, signature and thrumb impression of said three persons were also obtained on each envelope.
P.W. 1, Moris William Henari has further stated in his statement on oath that norcotic drugs recovered as well as samples taken from recovered drugs were deposited in godown and aforesaid three persons were taken into custody. He has further stated that recovery memo was prepared by P.W. 2 the then Inspector J.S. Saxena.
P.W. 1, Moris William Henari has futther stated in his statement on oath that during interrogation statements of accused were also recorded.
P.W. 2, J.S. Saxena, Superintendent has stated in his statement on oath that on 25.8.1988, he was posted as Inspector. He has further stated that on that date, on the direction of his officers, he along with Inspector R.K. Nigam, M.W. Henari, Ramesh Kumar, S.S. Chauhan, Ramesh Chandra, C.B. Pandey, K.P. Singh, R.C. Shukla, U.C. Shukla, A.K. Sharma and A.K. Dixit took position behind Rawatpur railway station in Mohalla R.S. Puram.
P.W. 2, J.S. Saxena, Superintendent has fully supported the statement of P.W. 1 Moris William Henari regarding arrest of accused-appellants and deceased co-accused Ram Chandra Yadav as well as recovery of Charas and Ganja from car in possession of accused-appellants and deceased co-accused.
P.W. 2, J.S. Saxena, Inspector has proved recovery memo (Ex. Ka-1), deposit memo (Ex. Ka-8) and arrest memo of accused-appellants and deceased co-accused Ram Chandra Yadav (Ex. Ka-5, 6 and 7) in his statement of oath.
P.W. 3, Ramesh Chandra Shukla, Superintendent Central Excise Division-I, Kanpur Nagar has also supported the arrest of accused-appellants along with deceased co-accused Ram Chandra Yadav as well as recovery of Charas and Ganja from car in possession of accused-appellants and deceased co-accused.
P.W. 3, Ramesh Chandra Shukla has proved deposit memo (Ex. Ka-8) also in his statement on oath.
P.W. 4, Umesh Chandra Shukla, Superintendent Central Excise, Moradabad has stated in his statement on oath that on 25.8.1988, he was also in the team of Excise Officers, which has recovered narcotic drugs from vehicle no. U.P. G-3627. In his statement on oath P.W. 4 Umesh Chandra Shukla has proved chemical report of samples of Charas and Ganja recovered as well as receipt of godown on which Ex. Ka-15, 16 and 17 have been marked by trial court.
Accused-appellant Anil Kumar Jaiswal has stated in his statement under Section 313 Cr.P.C. that he was going to his shop of Dalmoth (Namkeen) situated near Rawatpur station on G.T. Road. Accused-appellant Jagram was also with him. At that time near Kakadev crossing, non uniformed persons had detained a car.
Accused-appellant Anil Kumar Jaiswal has further stated in his statement under Section 313 Cr.P.C. that he and accused-appellant Jagram began to see the car detained by non uniformed persons whereupon said non uniformed persons took them to their office and asked them to become witnesses but they declined to become witnesses whereupon they were beaten and were forced to sign wrong statements.
Accused-appellant Anil Kumar Jaiswal has stated in his statement under Section 313 Cr.P.C. that neither any recovery has been made from his possession nor he has any concen with articles alleged to have been recovered.
Similar statement has been given by accused-appellant Jagram in his statement under Section 313 Cr.P.C.
D.W. 1 Ram Chandra Yadav has been examined on behalf of accused-appellants in defence. D.W. 1 Ram Chandra Yadav has stated in his statement on oath that in year 1988 in the month of Sawan at 1.00 p.m. he was drinking tea near Neerchheer Chauraha situated in old Mohalla Kakadev. At that time accused-appellant Anil Kumar Jaiswal and his servant accused-appellant Jagram were coming from the side of double pullia and there was standing a brown colour Ambassador car near Chauhara in which driver was sitting. At the same time 10 to 12 persons apprehended accused-appellants Anil Kumar Jaiswal and Jagram and asked them to become witnesses but they were not ready to become witnesses whereupon said persons carried them towards Devki Talkies in the vehicle.
In the case of Suresh & Others Vs. State of Madhya Pradesh 2013 (1) JIC 745 (SC) relied upon by learned counsel for the accused-appellants. Hon'ble Apex Court has held that :
"Provision of Section 50 of N.D.P.S. Act is mandatory and requires strict compliance. Failure to comply the provision would render the recovery vitiated and conviction unsustainable".
Section 50 of N.D.P.S. Act deals with provisions regarding search of person. Therefore, provisions of Section 50 of N.D.P.S. Act are not applicable on recovery made from car in possession of accused-appellants.
Perusal of impugned judgement of learned trial court shows that trial court has considered this issue and has drawn conclusion that Section 50 of N.D.P.S. Act is applicable only on search of person. Learned trial court has relied upon judicial pronouncements published in 1994 Cr.L.J. 1987, 2003(1) JIC 74, 2000 (2) JIC 807, 2000 (1) JIC 140, 2001 (1) JIC 930.
After having gone through whole facts and evidence on record as well as above judicial pronouncements, it is apparent that trial court has rightly held that Section 50 of N.D.P.S. Act is not applicable on the facts of the present case.
In view of facts and circumstances of the present case, accused-appellants are not entitled to get any benefit of pronouncement of Hon'ble Apex Court rendered in the case of Suresh & Others Vs. State of Madhya Pradesh (supra) In the case of State of Haryana Vs. Jarnail Singh and others 2004 (49) ACC 473 relied upon by learned Special Counsel for Union of India. Hon'ble Apex Court has held that :
"Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to section 42 of the N.D.P.S. Act for searching the vehicle between sunset and the sunrise".
In the case of G. Srinivas Goud Vs. State of A.P. 2005 SCC (Crl.) 1999 relied upon by Special Counsel for Union of India. Hon'ble Apex Court has held as follows :-
"The function of arrest, search and seizure carried out under Section 42(1) is by officers who do not have warrants or authorization in their hands before proceeding to take action. This is as per the heading of the Section which reads: "Power of entry, search, seizure and arrest without warrant or authorization". Under Section 41 it is the specified Magistrates who issue warrants of arrest and it is officers of gazetted rank who give authorisation in favour of their juniors. Provisions of sub- section (2) of Section 42 are meant to cover cases falling under Section 42(1). Therefore, in our view, the requirement under Section 42(2) need not to be extended to cases of arrest, search and seizure by officers of gazetted rank. The officer of gazetted rank while authorising junior officers under Section 41(2) knows what he is requiring them to do and, therefore, there is no need for reporting. For this reason Section 41 does not contain any such requirement. The need for reporting under Section 42(2) arises because the officer proceeds without authorisation in terms of Section 41(1) or 41(2). The requirement of informing the immediate official superior under Section 42(2), in our view, has to be confined to cases where the action is without authorisation by officers below the rank of gazetted officers".
In the case of Sukhdeo Singh Vs. State of Hayana 2013 (1) JIC 846 (SC) relied upon by learned counsel for the accused-appellants. Hon'ble Apex Court has held that :
"The legislature in its wisdon had made the provisions of Section 42 of N.D.P.S. Act mandatory and not optional as stated by this Court (Hon'ble Apex Court) in the case of Karnail Singh Vs. State of Haryana, 2010 (1) JIC 1 (SC)".
Perusal of impugned judgement passed by learned trial court shows that learned trial court has considered the provisions of Section 42 of N.D.P.S. Act and has drawn conclusion that provisions of Section 42 of N.D.P.S. Act are not applicable on seizure made in public places. Learned trial court has drawn this conclusion in view of principles laid down by Hon'ble Apex Court in the case of Narayanaswamy Ravishankar Vs. Assistant Director, Directorate of Revenue Intelligence, 2003 (1) JIC 74. Learned trial court has further held in its judgement that Section 42 of N.D.P.S. Act is not applicable on the facts of this case because it is apparent from the evidence on record that higher authorities has also received information regarding carrying of Narcotics drugs and the search has been made in compliance of direction of higher authorities. Learned trial court has further held that accused-appellants have been produced before higher authorities along with Narcotics drugs recovered.
In cross-examination, P.W. 2, J.S. Saxena has stated that His Officer, Sri R.P. Tamta had given him information regarding carrying of Narcotic drugs by Ambassdor car in office at 1.00 p.m. Thus, it is apparent that search has been conducted in compliance of direction given by superior officer and it is apparent from recovery memo (Ex. Ka-1) as well as statements of P.W. 1, Moris William Henari, P.W. 2, J.S. Saxena and P.W. 3, Ramesh Chandra Shukla that Charas and Ganja have been recovered in public place from Ambassdor car in possession of accused-appellants.
After having goune through whole facts and evidence in view of principle laid down by Hon'ble Apex Court in the case of State of Haryana Vs. Jarnail Singh and others (supra) as well as in the case of G. Srinivas Goud Vs. State of A.P. (supra), the conclusion drawn by learned trial court regarding non-applicability of Section 42 of N.D.P.S. Act cannot be said to be erroneous and against law.
It is apparent from perusal of recovery memo (Ex. Ka-1) as well as statements of P.W. 1, Moris William Henari, P.W. 2, J.S. Saxena and P.W. 3, Ramesh Chandra Shukla that recovery memo has not been prepared on the place where the car was checked and Charas and Ganja were recovered from said car. Recovery memo (Ex. Ka-1) has been prepared in the office of department.
In the case of Khet Singh Vs. Union of India 2002 (45) ACC 41 relied upon by learned Special Counsel for Union of India. Hon'ble Apex Court has considered non preparation of recovery memo on spot where the accused-appellants were found to be in possession of contraband article. The relevant portion of judgement of Hon'ble Apex Court rendered in said case of Khet Singh Vs. Union of India (supra) is quoted below :-
"In the present case, though the mahazar was not prepared at the spot where the accused persons were found to be in possession of the contraband article but the same was done only at the office of the customs department while the accused persons were very much present throughout, there was no allegation or suggestion that the contraband article was, in any way, meddled with by the officers. Therefore, we are of the view that the appellant has rightly been found to be in possession of the opium. We find no reason to interfere with the conviction and sentence entered against the appellant. The appeal is dismissed accordingly".
Perusal of statements of accused-appellants Anil Kumar Jaiswal and Jagram recorded under Section 313 Cr.P.C. shows that they have admitted arrest by party of Customs and Excise Department at the time and place alleged by prosecution and this fact has been supported by statement of D.W. 1 Ram Chandra Yadav. According to accused-appellants as well as their witness D.W. 1 Ram Chandra Yadav, accused-appellants Anil Kumar Jaiswal and Jagram were not with car. They were going to their shop. In the way where Ambassdor car was standing, Officers of Customs and Excise Department asked them to become witnesses but they declined to become witnesses, thereafter, accused-appellants were brought with car to office of Customs and Excise Department and were forced to sign false statement and have been falsely implicated.
Neither accused-appellants have stated in their statement under Section 313 Cr.P.C. nor their witness D.W. 1 Ram Chandra Yadav has stated that no narcotic drug was recovered from the car standing on the spot. Accused-appellants have not stated in their statements under Section 313 Cr.P.C. that false recovery of Charas and Ganja have been planted by officers of Customs and Excise Department. No suggestion has been given to prosecution witnesses on behalf of defence that the recovery of Charas and Ganja has been planted by the departmental officer.
It is relevant to mention at this juncture that accused-appellants had not made any complaint against officers of Customs and Excise Department for false implication. They have not made any complaint even before Magistrate before whom they were produced for first remand. The evidence on record shows that there is no ground for false implication of accused-appellants by authorities of Customs and Excise Department.
Considering whole facts and circumstances of the case as well as evidence on record, I am of the view that prosecution has fully proved the arrest of accused-appellants on spot along with Ambassdor car having Charas and Ganja in it. Therefore, in view of above pronouncement of Hon'ble Apex Court rendered in the case of Khet Singh Vs. Union of India (supra), the preparation of recovery memo in the office of department is not fatal for prosecution case. In this context, it is relevant to mention that after recovery of narcotics drugs in such a huge quantity, the preparation of recovery memo on road appears quite inconvenient.
In view of discussion made above, I am of the view that prosecution case may not be discarded merely on the ground that recovery memo (Ex. Ka-1) was prepared in the office of custom and excise department.
P.W. 3, Ramesh Chandra Shukla, Superintendent Central Excise Division-I has stated in his statement on oath that the case property in five bags is available before him. He is identifing the said case property and this case property bears the same deposit number which has been entered in the deposit memo.
In cross-examination P.W. 3, Ramesh Chandra Shukla, has stated that he could not tell as to what article was recovered from which accused. He has further stated in cross-examination that the bags produced before court do not contain his as well as his colleague's signature but he has stated that the bags contain mark of seal of godown incharge. He has further stated in cross-examination that there is no slip on the bags containing signature of gazetted officer of department or accused-appellants.
In the case of Roshan Vs. State of U.P., 2003 Legal Eagle (ALD) 2007 relied upon by learned counsel for the accused-appellant, recovered contraband articles were not produced before any witness and police officer has not made full report of all the particulars of the arrest and seizure to immediate superior officer. In such circumstances, this Court has set aside the conviction and sentence recorded by trial court but as discussed above, provisions of Section 42 of N.D.P.S. Act are not applicable on the facts of this case and Charas and Ganja alleged to have been recovered from the possession of accused-appellants have been produced before trial court during examination of P.W. 3 Ramesh Chandra Shukla, therefore, the facts of this case is distinguishable from the facts of aforesaid case Roshan Vs. State of U.P. (supra).
It is relevant to mention at this juncture that recovery of Charas and Ganja is alleged to have been made on 25.8.1988. The case property has been produced before trial court during examination of P.W. 3, Ramesh Chandra Shukla on 25.4.2003 after lapse of 15 years. Therefore,due to lapse of such a long time the seals and slips as well as signatures might have been damaged, destroyed or defaced.
In this context, it is also relevant to mention that in cross-examination, P.W. 3 Ramesh Chandra Shukla has not been given any suggestion on behalf of defence to the effect that the case property produced before trial court is not the case property related to this case. It is also relevant to mention that the accused-appellants have stated that they have been falsely implicated but they have not denied recovery of Charas and Ganja from car as alleged by prosecution.
Therefore, considering all facts and circumstances of the case as well as evidence on record, I am of the view that the prosecution case may not be disbelieved merely on the ground that the case property brought before trial court was not in a good condition.
In the case of Heeramani Sahu Vs. State of Chhattisgarh, LAWS (CHH)-2013-5-7, Hon'ble High Court Chhattisgarh has relied upon judgement of Hon'ble Apex Court rendered in the case of State of Rajasthan Vs. Bher Singh, (2009) 16 SCC 293, wherein Hon'ble Apex Court has held that :
"the prosecution has failed to prove that the seal of the seized samples had remained intact till its examination in FSL, this being a mandatory requirement to establish the fact that seized goods was in fact a prohibited drug under the NDPS Act."
Perusal of chemical examination report (Ex. Ka-15 and Ka-16) shows that each envelope containing samples of Charas and Ganja recovered were containing three seals intact.
In view of chemical examination report (Ex. Ka-15 and Ka-16), it is apparent that seal of seized samples were intact till its examination by chemical examinor, therefore, on the facts and evidence available on record accused-appellants are not entitled to get benefit of above pronouncement of Hon'ble Apex Court rendered in the case of State of Rajasthan Vs. Bher Singh (supra).
In the case of Jitendra Singh Rathore Vs. State of U.P., 2014 (1) JIC 954 (Alld) relied upon by learned counsel for the accused-appellants, it was undisputed that sample was not taken from all the 29 packets recovered from the bags with which the accused-appellant was sitting and only one sample was taken. In such circumstances this Hon'ble Court has drawn conclusion that recovery of contraband article from the possession of appellant appears to be doubtful.
Perusal of recovery memo as well as statements of witnesses examined by prosecution shows that Charas has been recovered in two bags kept on back seat of car and Ganja has been recovered from the dicky of the car kept in packets and small bag.
Perusal of recovery memo as well as statement of witness examined by prosecution shows that the car was in possession of accused-appellants as well as deceased co-accused Ram Chandra Yadav.
Recovery memo as well as statement of witness P.W. 1, Moris William Henari shows that samples were taken from recovered Charas and Ganja and were kept in sealed envelopes and signature as well as thumb impression of accused-appellants were also obtained on said envelopes.
Chemical examination report (Ex. Ka-15 and 16) of said sample shows that articles recovered from the car were Charas and Ganja. It is relevant to mention at this stage that defence has not challenged the chemical examination report.
As mentioned above, the alleged recovery of Charas and Ganja has been made on 25.8.1988 and statement of P.Ws. has been recorded before trial court in year, 2003 after lapse of 15 years. Therefore, due to lapse of such a long time. The memory regarding incident may not remain fresh. Therefore, there may be some variation in the statement of witnesses but after having gone through whole statements of witnesses examined by prosecution, it is apparent that there is no material contradiction in their statements and there is no sufficient ground to disbelieve their testimonies.
In view of discussion made and conclusion drawn above, I am of the view that witnesses examined by prosecution are trustworthy witnesses and there is no reasonable ground to disbelieve them.
In the case of Ajmer Singh Vs. State of Haryana, 2010 CrLJ 1899 SC, Hon'ble Apex Court has held that it cannot be said that the evidence of official witness cannot be relied upon as their testimony has not been corroborated by any independent witness.
In view of this pronouncement of Hon'ble Apex Court, the prosecution story may not be discarded merely for want of public witness. In this context, it is relevant to mention that no one shall take risk of enmity against Mafia by appearing as a witness against him.
In the case of Ram Singh Vs. Central Bureau of Narcotics, (2011) 3 Supreme Court Cases (Cri.) 181. Hon'ble Apex Court has placed reliance on its previous judgements rendered in the case of M. Prabhulal v. Directorate of Revenue Intelligence, (2003) 8 SCC 449 as well as in the case of Kanhaiyalal v. Union of India, (2008) 4 SCC 668 and has held that conviction can be maintained solely on the basis of cofession made under Section 67 of N.D.P.S. Act.
Perusal of statements of accused-appellants recorded under Section 67 of N.D.P.S. Act by Ex. Ka-2 and 4 shows that they had made confessional statements also under Section 67 of N.D.P.S. Act before departmental authorities.
In the statements recorded under Section 313 Cr.P.C. accused-appellants have stated that after having assaulted, their statements have been taken and forged documents have been prepared. Perusal of records shows that before statements of accused-appellants recorded under Section 313 Cr.P.C. no complaint has been made by accused-appellants either before remanding Magistrate or trial court or any other authority alleging that accused have been forced to give false statements and in the case of M. Prabhulal v. Directorate of Revenue Intelligence (supra) Hon'ble Apex Court has held that :
"it is also be to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial Judge under Section 313 of the Code of Criminal Prodecure that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of the appellants conviction".
Considering whole facts and circumstances of the case as well as evidence on record, I am of the view that the conviction recorded by trial court against accused-appellants is in accordance with law and evidence. The trial court has considered whole evidence and all points relevant for determination of the case. The conclusion drawn by trial court is based on judicious analysis of evidence and is accordance with law.
Considering quantity of Charas and Ganja alleged to have been recovered from the possession of accused-appellants as well as facts and circumstances of the case, I am of the view that sentence awarded by trial court to accused-appellants is not excesive.
In view of discussion made and conclusion drawn above, after having gone through whole evidence as well as facts and circumstances of the case, I am of the view that there is no sufficient ground for interference in the impugned judgement and order passed by trial court.
In view of discussion made and conclusion drawn above, I am of the view that appeal has no merit. Appeal is dismissed accordingly.
Office is directed to send copy of judgement to trial court for information and necessary action.
Let record of trial court be sent back immediately.
Order Date :- 9.1.2015 Manoj (Hon. Akhtar Husain Khan,J)