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2002 DIGILAW 741 (ALL)

RADHEY SHYAM v. STATE OF UTTAR PRADESH

2002-05-23

BHANWAR SINGH

body2002
BHANWAR SINGH, J. ( 1 ) THIS appeal is directed against the verdict of conviction and sentence dated 7-7-1994 whereby the appellant was convicted under Section 20 read with Section 8 of the Narcotics Drugs and Psychotropic Substances Act and sentenced to undergo rigorous imprisonment for two years and a fine of Rs. 2000. 00. In default of payment of fine, a further jail term of six months was awarded. ( 2 ) IN brief, the prosecution case was that the appellant Radhey Shyam Gupta was arrested at 5. 00 p. m. on 4-9-1992 from the Khandhar of Shiv Baran Singh which is situated in village Palra, police station Chilla, district Banda. A search of the said accused yielded to recovery of 471/2 kgs. Ganja. He had no licence to hold in his possession the said quantity of contraband substance. A recovery memo in presence of the Circle Officer was prepared and a copy thereof was handed over to the accused. The said memo was signed, besides the police personnel, by two public witnesses, namely, Bhoora and Sada Shiv who were picked up from a nearby road, a little before the arrest of the accused. A small quantity of ganja, i. e. 250 gms was taken out of the total quantity recovered, for being sent to the public analyst. The Joint Director of Agra Laboratory, Agra submitted his report that the sample pertaining to this recovery on being chemically analysed was found to be as ganja. ( 3 ) IN support of its case, the prosecution examined Sub-Inspector Ram Gopal as PW 1, Bhoora as PW 2, Kishan Singh, Circle Officer as PW 3 and S. I. Iqbal Singh, Investigating Officer as PW 4. The accused denied all the incriminating allegations levelled against him and pleaded not guilty. According to him, he was got falsely implicated in this case of fabricated recovery of ganja by Constable Shiv Singh who used to buy from his shop goods on credit and when he demanded his dues, he was arrested and carried to police station and framed in this case. ( 4 ) LEARNED Sessions Judge, Banda relied upon the prosecution story and the evidence of the witnesses examined in support thereof and arrived at a conclusion that the arrest of the accused and recovery of 71/2 kgs. Ganja was fully established by the prosecution beyond a reasonable doubt. ( 4 ) LEARNED Sessions Judge, Banda relied upon the prosecution story and the evidence of the witnesses examined in support thereof and arrived at a conclusion that the arrest of the accused and recovery of 71/2 kgs. Ganja was fully established by the prosecution beyond a reasonable doubt. On the basis of this conclusion, the learned Sessions Judge recorded a verdict of conviction and awarded sentences as indicated above. Feeling aggrieved of the judgment and sentence passed by the learned Sessions Judge, the accused Radhey Shyam Gupta has filed this appeal. ( 5 ) I have heard learned counsel for the appellant and learned Addl. Government Advocate and perused the record. ( 6 ) IT is significant to note that there were two witnesses of public who, according to the prosecution case, were present in the Khandahar of Shiv Baran Singh and the prohibited quantity of ganja was recovered in their sight and presence. First of all, it is noteworthy that neither of the two witnesses who were alleged to have been picked up by the police prior to the occurrence did not belong to Palra village. Whereas Bhoora belonged to village Para, the other witness, namely Sada Shiv hailed from the village Bachcha-ka-dera. Obviously thus, the two public witnesses cannot be said to be natural witnesses as they were residents of other village. Apart that, these witnesses were chance witnesses. They have not supported the prosecution story. Bhoora appeared in the witness box as PW 2 before the trial Court and clearly testified that no ganja was recovered from the custody of Radhey Shyam Gupta either in village Palra or elsewhere. Although, he admitted his signature on the recovery memo, ext. Ka-1, yet he rejected the prosecution theory of the accused being found in possession of any contraband goods. He explained that the police obtained his signature on a plain and blank paper, ext. Ka-1. He rejected the suggestion that he had colluded with the accused appellant and changed his version. The other witness, namely Sada Shiv did not appear in the witness box to prove the recovery memo. No other public witness has come forward to land any assurance to the prosecution case. Ka-1. He rejected the suggestion that he had colluded with the accused appellant and changed his version. The other witness, namely Sada Shiv did not appear in the witness box to prove the recovery memo. No other public witness has come forward to land any assurance to the prosecution case. ( 7 ) IT is noteworthy that several villagers had gathered at the alleged site of occurrence but no resident of village Palra was either cited as a witness of recovery in the recovery memo nor any such villager was examined before the trial Court. In the absence of probable and natural witnesses of the village, it appears to be difficult to place any reliance upon the genuineness of the recovery memo. ( 8 ) P. W. 1 Ram Gopal, Sub-Inspector and P. W. 3 Kishan Singh, Circle Officer are the only witnesses who have proved the arrest of the accused and the factum of recovery of ganja alleged to have been made from him. However, it cannot be lost sight of that both these officers are police personnel. No doubt, their evidence cannot be brushed aside merely because of their being police officers but very serious infirmities arising from their evidence would clearly point to a conclusion that the prosecution theory of the accused appellant being arrested in the dilapidated house of one Shiv Baran Singh is nothing but a concocted version. ( 9 ) P. W. 1 Ram Gopal, Sub-Inspector received the information at 3. 15 pm. from an informer on 4-9-1992 that a resident of village Palra, namely Radhey Shyam Gupta was coming from Banda and he had in his possession the prohibited quantity of ganja. The Sub-Inspector immediately recorded his departure entry in the General Diary and informed his superior authority, namely Shri Kishan Singh, the Circle Officer about Radhey Shyam Gupta being in the custody of ganja. The Sub-Inspector arrested the accused at 5. 00 pm. in the khandahar of Shiv Baran and it was a coincidence that the Circle Officer arrived then and there. The search of the accused was taken in presence of the Circle Officer and he also signed the recovery memo. The Sub-Inspector arrested the accused at 5. 00 pm. in the khandahar of Shiv Baran and it was a coincidence that the Circle Officer arrived then and there. The search of the accused was taken in presence of the Circle Officer and he also signed the recovery memo. In this context, two facts would draw ones attention - one of them being the location of the khandahar of Shiv Baran Singh and the other as to when the Circle Officer was informed and what the information communicated on the R. T. set. ( 10 ) AS regards the situation of the dilapidated house of Shiv Baran Singh, the evidence of PW 1 would have been very significant but he gave out absolutely wrong description of the said place of occurrence. According to him, the main gate of Shiv Baran Singhs house was towards the south and the khandahar, i. e. the dilapidated house from where the accused was arrested was situated just in front of the said southern gate. A perusal of the site plan, ext. Ka-4 would reveal that there are two gates of the residential house of Shiv Baran Singh and both these gates opened in a street situated towards south but across the said road is the house of one Ram Das son of Bangali Bhurji. The site plan further depicts that the khandahar of Shiv Baran Singh adjoins his residential house towards east and since it was dilapidated house, it had no gates and doors etc. During his cross examination, Ram Gopal was specifically confronted with the location of Shiv Baran Singhs residential house as well as the Khandahar. Since he wrongly described the location, he cannot be said to have visited the place. He correctly mentioned the location of the house of the accused appellant towards east of the Khandahar but committed blunder by stating that the site of occurrence was located in the south of Shiv Baran Singhs residential house. This raises a suspicion on the genuineness of his testimony. ( 11 ) P. W. 3 Kishan Singh, Circle Officer also failed to disclose the location of the residential house of Shiv Baran Singh. He stated that he was not aware as to whether Shiv Baran Singhs house was situated in the immediate vicinity of the Khandahar or it was located elsewhere in the village. ( 11 ) P. W. 3 Kishan Singh, Circle Officer also failed to disclose the location of the residential house of Shiv Baran Singh. He stated that he was not aware as to whether Shiv Baran Singhs house was situated in the immediate vicinity of the Khandahar or it was located elsewhere in the village. Thus, his presence at the site of occurrence also cannot be said to have been established beyond doubt. ( 12 ) THE other fact which further brings the statement of Kishan Singh within the precincts of suspicion is that quite contrary to the evidence of PW 1 Ram Gopal, he stated that he received information at 3. 15 pm. on 4-9-1992 on R. T. Set that a villageman, namely Radhey Shyam, resident of Pangara was suspected to be in possession of ganja. However, the investigating officer, PW 4 Iqbal Bahadur fairly conceded in para 2 of his cross-examination that the name of the accused was not disclosed on R. T. Set because by then the accused had been arrested. This clearly shows that the name of Radhey Shyam was pre-empted by the Circle Officer as well as the Sub-Inspector who along with other police constables set out from the police station at 3. 00 p. m. to arrest the accused. It will not be out of place to mention that Radhey Shyam was a resident of village Palra and was not Pangara as testified by Kishan Singh. It cannot also be lost sight of that the Circle Officer was taken towards the site of alleged arresting place by Constable Shiv Singh who, according to the accused, was instrumental in getting him arrested. P. W. 1 S. I. Ram Gopal confirmed that Shiv Singh and three other Constables were with him in the Khandahar at the time when the Circle Officer arrived. The Sub-Inspector did not state that constable Shiv Singh was left behind on the road so as to guide the Circle Officer to come to the site of arrest. This again raises a strong doubt that the Circle officer was brought by Constable Shiv Singh to the Khandahar of Shiv Baran Singh for certifying the recovery of ganja from the accused appellant. All these discrepancies taken together would indeed establish beyond doubt that the testimony of the Circle Officer is totally unworthy of credit. This again raises a strong doubt that the Circle officer was brought by Constable Shiv Singh to the Khandahar of Shiv Baran Singh for certifying the recovery of ganja from the accused appellant. All these discrepancies taken together would indeed establish beyond doubt that the testimony of the Circle Officer is totally unworthy of credit. ( 13 ) CONSIDERING all what has been discussed above, I am of the decisive view that the prosecution case suffers from serious inconsistencies and infirmities with disturbing features all around. The prosecution theory of arrest and recovery of ganja from the appellant is not at all credible. The crux is that neither of the two police officers ever visited the place of arrest and recovery. Therefore, the conviction and sentence awarded to the accused appellant cannot be sustained. The net result is that the appeal deserves to be allowed. ( 14 ) ACCORDINGLY, the appeal is allowed and the verdict of conviction and sentence passed against the appellant is set aside. The accused appellant is held not guilty of the charge levelled against him under Section 20 read with Section 8 of the Narcotics Drugs and Psychotropic Substance Act. He is on bail to which he need not surrender and his bail bonds are cancelled and sureties discharged. Appeal allowed. .