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Allahabad High Court · body

2003 DIGILAW 1411 (ALL)

PANCHAM SINGH v. STATE OF U P

2003-07-04

S.K.AGARWAL

body2003
S. K. AGARWAL, J. Heard Mrs. Raj Laxmi Sinha, learned Counsel for the appellant and learned AGA. 2. This appeal arises from a judgment and order dated 31-3-1993, passed by Sri G. P. Srivastava, Ist Additional District & Sessions Judge, Kanpur Dehat, in ST No. 21 of 1991 convicting and consequently sentencing the appellant under Section 20 of the NDPS Act to 10 years RI and a fine of Rs. 1,00,000. In default of payment of fine, he was further sentenced to 3 years RI. 3. The brief facts of the case are that the appellant was a resident of village Trivedinpur. He was running a flourmill on the date of occurrence, i. e. 16-4-1991. The SHO, PS Gajner, District Kanpur Dehat received an information from an informer that this appellant is indulging into sale of Charas regularly. Believing the information as correct, PW 1 SHO Chandra Pal Singh planned to organize a raid and proceeded for village Trivedinpur along with some constables, 2 S. Is. and a Head Constables. Abandoning the jeep at the outskrit of village Trivedinpur the raiding party preceded on foot slowly and stealthily, avoiding being noticed by the villagers, upto the flourmill of this appellant. A little before the flourmill the informer went away pointing towards the appellant, PW 1 SHO Chandra Pal Singh noticed that he was sitting on a Chabutara (platform) and two persons standing in front of him negotiating to purchase some article. The raiding party swooped on the appellant. He was apprehended. On being apprehended, his person was searched and a plastic packet containing 1 kg. of Charas (in rods) was recovered from him. He then was asked to produce the licence, but he failed not produce the same. He was then told that he has committed an offence under Sections 18/20 of the NDPS Act and since the offence is cognizable accordingly he is being arrested. He was then taken into custody. Thereafter, he was asked whether he wants to given his search before a Magistrate or a Gazetted Police Officer. As is commonly detailed in such FIRs the accused appellant showed his disinclination to go to any Magistrate or a Gazetted Officer. Two samples, each weighing 24 gms. , were drawn from the recovered Charas at the spot. Rest of the Charas was sealed in a packet. The appellant was brought to the police station. 4. As is commonly detailed in such FIRs the accused appellant showed his disinclination to go to any Magistrate or a Gazetted Officer. Two samples, each weighing 24 gms. , were drawn from the recovered Charas at the spot. Rest of the Charas was sealed in a packet. The appellant was brought to the police station. 4. On a chemical examination, both the samples were found to contain Charas. The report is Ext. Ka-3a. The appellant was charged under Section 20 of the NDPS Act. He claimed to be tried. The prosecution in support of its case, produced PW 1 SO Chandra Pal Singh of PS Gajner, PW 2 Countable Ashok Kumar Pandey is the person who had taken the samples to the chemical examiner. PW 3 is Head Constable Darbari Lal. He had taken down the written report and also received the recovered articles along with the samples. PW 4 is SI S. B. Singh of PS Gajner. He has investigated the case. 5. The statement of the appellant was recorded. He, however, has denied the recovery and claimed his false implication at the instance of the police. He also stated that the policeman of PS Gajner were not making his payment for the supply of rice and oil. On demand, he was abused. He was threatened with serious consequences if he made any demand of his money. He was picked up in the night from his house. They pressed his mouth so that he may not raise any alarm. He had examined in support of his case three defence witnesses. 6. DW 1 is Ragho Rai Singh. He deposed about the arrest of the appellant in the night from his house. He also admitted that some quarrel also took place. He further proved that the policeman used to purchase rice and oil from the shop of the appellant. Four months prior to the incident police of PS Gajner had taken 4 tins of mustered oil and 2 bags of rice from his shop on the pretext that there is some function at the house of SO. The payment will be made later on. When Pancham Singh demanded its price, he was threatened and challenged with dire consequences. 7. DW 2 is Chandra Pal Singh. He had proved the status of the appellant. His village is about a furlong and a half from the village of this appellant. The payment will be made later on. When Pancham Singh demanded its price, he was threatened and challenged with dire consequences. 7. DW 2 is Chandra Pal Singh. He had proved the status of the appellant. His village is about a furlong and a half from the village of this appellant. He had also proved that the policeman used to purchase rice and oil from the shop of the appellant without any payment being made. Some quarrel took place regarding non-payment of the price of articles so supplied. The police had threatened the appellant with dire consequences. He also proved that the police, in the middle of the night, took the appellant away. Some scuffle also took place. 8. DW 3 is Surjan Singh. He had established that policeman used to visit the shop and flourmill of the appellant. On a number of occasions the police visited his business premises in his presence. Four tins of mustered oil and two bags of rice were demanded by the police on deferred payment about 2-1/2 years age from the date of his deposition. The police came in the wee hours of the night and apprehended the appellant from his house. He had seen the occurrence from his door. He was awakened by the sound of the jeep. Personal search of Pancham Singh was taken in his presence. Nothing was recovered. Then police went to his workshop. Nothing was found there also. The police thereafter, left the village with Pancham Singh to the police station. When the villagers asked the policeman whither they are taking him, they were told that something is to be enquired from him. On the next day he came to know that Pancham Singh was challenged for the impugned offence. Several people of the village also collected thereat the thus of his arrest. 9. After appreciating the evidence of the solitary witness of recovery and arrest, PW 1 SO Chandra Pal Singh the appellant was convicted as earlier discussed by the trial Court. 10. It has been contended by learned Counsel for the appellant that the implication of the appellant in the offence was made for his daring to demand the price of 4 tins of mustered oil and 2 bags of rice. He became a victim of the police vindictiveness and their autocratic intransigence. There is no compliance of Section 50 of the NDPS Act. He became a victim of the police vindictiveness and their autocratic intransigence. There is no compliance of Section 50 of the NDPS Act. No independent witness was taken. In order to get over the difficulty the police has come out with a case of his scuffle with the villagers during the trial. This fact was never mentioned in the FIR. This largely corroborates defence version. 11. It is noticeable that during ttrial the SI PW 1 has tried to molest the evidence, so much so that he had filled up the lacuna left in the FIR regarding compliance of Section 50 of the NDPS Act. According to FIR after the arrest and recovery, he was suggested to give his search before a Magistrate or a Gazetted Police Officer. This suggestion was not accepted by the appellant. He showed no objection to the search by the sub-inspector. Sealing of the sample was done by the SI himself. From the FIR it appears that this witness himself is its author. It appears that he made an attempt to procure witness in the village of the appellant after disclosing to them the information given by the informant. Nobody agreed to be a witnesses. But in the trial Court he had made a majestic modification in his evidence in this regard. He admitted that the place where the flourmill of the appellant situates is the northern corner of the village. He was entering the village from the southern end. He made an attempt to procure witnesses from this end but despite communication of the information no one was ready to accompany them and witness the arrest and recovery. He, for the first time, said that the witnesses told him that the appellant is a relative of Jagroop Singh and for this reason every one, whom he requested for being a witness, declined to be so. Thereafter the formality of mutual search was completed by the police party. They proceeded to the place of occurrence concealing themselves behind the trees and plants. On reaching near the flourmill, in broad daylight they found the appellant sitting on the platform in front of his flourmill and two persons standing in front of him making some purchase. The informer pointed towards the appellant. The appellant was surrounded and apprehended at about 4. 00 p. m. in the said manner. On reaching near the flourmill, in broad daylight they found the appellant sitting on the platform in front of his flourmill and two persons standing in front of him making some purchase. The informer pointed towards the appellant. The appellant was surrounded and apprehended at about 4. 00 p. m. in the said manner. Strangely enough both the purchasers managed to flee the police dragnet. Here in the trial Court the modification occurs regarding compliance of Section 50 of the NDPS Act (for short called as the act ). According to the substantive evidence immediately after the arrest, he was informed of the provisions of Section 50 of the said Act and also the fact that they have reliable information that the appellant was engaging himself into transactions of narcotic drugs and psychotropic substances. He was also asked whether he wants to give his search before a Magistrate or a Gazetted Officer. The appellant declined the offer and allowed PW 1 SI Chandra Pal Singh to proceed with the recovery and taking of samples. He has proved all the papers that were prepared by him in the course of the proceedings. It has, for the first time, stated here in the trial Court by this witness that at about 5. 00 p. m. when they were in the process for proceeding to the police station from the village, the family members of the appellant and villagers belonging to village Trivedinpur surrounded them from all sides. They made an abortive attempt to relive the appellant from their custody. The public also manhandled them. According to him, village Trivedinpur is about 9 kms. from the police station. This village falls within the police station. He had visited Trivedinpur some 30-40 times. He admitted that the flourmill of the appellant was by the side of the main road. He pleaded ignorance as to whether in the flourmill oil expeller and crusher are fixed. He further stated that before this occurrence he had no occasion to visit the flourmill of this appellant. He also stated that he had never paid any attention as to whether 5-10 persons used to remain at the flourmill of the appellant. He also admitted that he did not ask the informer as to why he did not inform about this activity of the appellant in the past. He also stated that he had never paid any attention as to whether 5-10 persons used to remain at the flourmill of the appellant. He also admitted that he did not ask the informer as to why he did not inform about this activity of the appellant in the past. He admitted that he had not noted down the substance of the information received from the informer in the recovery memo or in the GD because he did not felt any necessity for doing so. A reference to the GD was already given in the recovery memo. They did not stop any where on the way. Sarvankehra falls in their way. He did not remember whether it was market day. He also admitted that on the way or at Sarvankehra he did not search for any witness in the expectation that he will get necessary witnesses in concerned village Trivedinpur. He took only 20-25 minutes in reaching the spot where the jeep was abandoned. It was not visible from the road. The door of flourmill is in the west. The road is also in its west. It is a busy road. Tempo, horse cart and buses used to be available regularly. The flourmill is in the north of the village. There is no Abadi (habitation) after the flourmill. They did not find any passer-by to be called upon to become a witness. The people of the village Trivendipur were known to him from before. Then he cleverly said that he was not knowing Pancham Singh. This statement is highly ingenious and unbelievable. In cross-examination he again stated that when they started for the police station from the village, after the arrest, number of persons collected there and tried to relieve Pancham Singh from them. Pancham Singh had also tried to run away. A separate report was registered for it. He claimed that the FIR of that case was brought by him but a copy of it was not filed, nor the Trial Judge directed the same to be filed. In the FIR he categorically stated that the appellant was known to him from before. When this question was put to him, he tried to explain it in the following manner. Because he had arrested Pancham Singh already and his name was disclosed by the accused, therefore, he said so in the FIR. In the FIR he categorically stated that the appellant was known to him from before. When this question was put to him, he tried to explain it in the following manner. Because he had arrested Pancham Singh already and his name was disclosed by the accused, therefore, he said so in the FIR. From the ten of his statement and from the explanation offered by this witness it does not stand scrutiny that he was not known the appellant from before. He had deliberately tried to conceal this fact. Why it was so done by him shall be tested in the light of the defence, as taken up by this appellant, and the evidence of DW 3. He has categorically admitted that Pancham Singh is a relation of Jagroop Singh, but what is their relationship he failed to explain. Thereafter, he further admitted that Jagroop Singh is a Kushwaha and Pancham Singh is Chandel. It is common knowledge that Chandel belongs to Rajput community. Therefore, it is clinchingly established that there did not exist any relationship between the appellant and Jagroop Singh, the Block Pramukh. Once this is held then the story about the interference by the villagers in the discharge of the duty by the policeman is torn to shreds. The Court could take no notice of this fact when such fact did not find mention in the FIR when this very witness being the author of that. The omission assumes serious significance. It is also important that good number of police personnel were there. They divided themselves into two parties and proceeded for the appellant from two different sides, yet they allowed the two purchasers to make their escape and good under their very nose. This further indicates that they were only interested in apprehending the appellant and not those to whom he was selling the article. 12. From the evidence of this witness it is clear that total recovered Charas was not brought to the Court at any point of time. This is a material lapse especially when the defence is seriously challenging the entire exercise of recovery of Charas from him. From his testimony, read in league with the FIR this Court has no doubt that there was no compliance of Section 50 of the NDPS Act. This is a material lapse especially when the defence is seriously challenging the entire exercise of recovery of Charas from him. From his testimony, read in league with the FIR this Court has no doubt that there was no compliance of Section 50 of the NDPS Act. The attempt of the prosecution to explain the non- taking of any independent person to witness the search and the recovery, apart from arrest, further leaves hardly any room to maneouver the ill-intention of the policemen. The police apparently was trying to have the pound of flesh from the appellant for reasons that shall be discussed subsequently. 13. In these facts and circumstances, this Court is not inclined to place any reliance on the testimony of PW 1 Chandra Pal Singh, the solitary police personnel, for the arrest of the appellant and recovery of the impugned Charas. The trial Judge has erroneously drawn corroboration from the testimony of PW 3 Head Moharrir Darbari Lal. This Court is not prepared to fall into that error. It is also a dprecable practice that an officer subordinate to the officer, who arrested the accused, had conducted the investigation of an offence of NDPS Act belonging to the same police station. The raid was conducted by the SO and the officer, who completed the investigation, was subordinate to this officer (PW 1 ). It would be very difficult, rather impossible, for him to take an independent stand during the investigation. Generally investigation, especially where SO himself is the search and arrest officer, of such offence of NDPS Act, should and must be entrusted to an independent officer belonging to another police station. This will ensure public trust and faith in the investigation conducted by the police. It will also put a check upon the abuse of the powers conferred by this Act upon the police. It was more so necessary because there was a serious charge of mala fide and false implication of the appellant against PW 1. 14. We have noticed frequently that in the State of U. P. the police of the State is abusing the provisions of this Act freely. The persons who could not be checked and controlled by incarceration under different offences of the Penal Code or other Acts were ultimately booked under this Act by placing such psychotrocpic substances like Diazepam tablets or small quantities of Ganja or Charas etc. The persons who could not be checked and controlled by incarceration under different offences of the Penal Code or other Acts were ultimately booked under this Act by placing such psychotrocpic substances like Diazepam tablets or small quantities of Ganja or Charas etc. Therefore, I am taking cognizance of these facts and referring them in the judgment. It is commonly known as well that after arresting a person, who is engaged in small transactions of narcotic drug and psychotrocpic substanders, the police of this State never makes an attempt to unearth the principal offenders, who are engaged in mass scale sale of such substances. Youths of a nation are its aspirations. These drug peddlers used to spoil the life and limb of the young ones going to schools and colleges. These substances are freely sold with the police connivance at the gates of the schools & colleges. Once or twice a year, as a face saving device, some such small peddlers are arrested from the gages of some of schools and colleges. 15. The defence witnesses, three is number, whose evidence has already been discussed earlier, were discarded by the trial Court for the reasons that they were either belonging to the adjoining village or the same village of which the appellant is. Villagemen or the persons who could have the opportunity to witness these things can be the best witnesses. It is also admitted to the prosecution that the villagers had made an abortive attempt to free the appellant from the clutches of the police is a strong circumstances in the defence of this appellant. The time of the raid and the arrest was predetermined by the police, if we go by the evidence of the defence witnesses. According to defence witnesses the arrest was effected in the early hours of the morning, whereas the prosecution claims the arrest to be at 4. 00 p. m. the next day. Their testimony was wrongly discarded by the trial Judge. The law is that the evidence of the prosecution and the defence should be tested on the same yardstick. They should also be discarded by giving cogent reasons and not simply because they belong to the village of the person arrested or they are neighbours of his. In case, like this, only the neighbours or the people living in the close vicinity could only be the probable witnesses. They should also be discarded by giving cogent reasons and not simply because they belong to the village of the person arrested or they are neighbours of his. In case, like this, only the neighbours or the people living in the close vicinity could only be the probable witnesses. The trial Judge completely ignores this aspect while dismissing them. Two different standards would not be allowed to be used for appreciation two classes of witnesses, the defence and the prosecution. The prosecution, in this case has failed to stand on its own legs. The defence evidence, in my opinion, is far more convicting and reliable. There si no apparent reason for discarding their testimony. According to them the sale of 4 tins of mustered oil and 2 bags of rice was made to the police 2-1/2 years ago from the date of their appearance. As usual the police personnel purchase things from the shopkeepers on deferred payment and then avoid to make the payment on demand and if repeatedly payment is asked, they used to involve the persons to teach them a lesson in frivolous offences. It appears to be one of such case, prima facie. 16. I have no hesitation in arriving at this conclusion. It is fully borne out from the evidence of the sole witness PW 1 as well. The conduct of this witnesses in trying to seek conviction of the appellant for such a heinous offence on the strength of ingeniously cooked up evidence is strongly condemned. It is my firm opinion that this exercise was made by this witness with a wholly mala fide and pernicious intention. He was motivated by his desire to wreak vengeance against the appellant for his daring to make a demand upon officer of the goods supplied to him. It was clearly an exercise to causing fear and terror of police amongst the local citizenry of the village. This is a dishonour of the robe they worn. He deserves serious consequences for attempting to do. I impost a cost of Rs. 40,000 (Rupees forty thousand) upon this PW 1. It is to be recovered from him within six months. Rs. 30,000 (Rupees thirty thousand) shall be paid to the appellant out of it as compensation. 17. For the reasons given above, the appeal is allowed. The conviction of the appellant is set aside. I impost a cost of Rs. 40,000 (Rupees forty thousand) upon this PW 1. It is to be recovered from him within six months. Rs. 30,000 (Rupees thirty thousand) shall be paid to the appellant out of it as compensation. 17. For the reasons given above, the appeal is allowed. The conviction of the appellant is set aside. He is acquitted of the offence charged for. He is on bail. He need not surrender. His personal bond is cancelled and sureties are hereby discharged. Appeal allowed. .