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2005 DIGILAW 369 (ALL)

EKRAM WARIS v. STATE OF U P

2005-02-25

UMESHWAR PANDEY

body2005
UMESHWAR PANDEY, J. The appellant accused has challenged the judgment and order dated 30-6-1997 passed by the Sessions Judge, Ghazipur, convicting and sentencing him for the offence punishable under Section 8/21 N. D. P. S. Act (hereinafter referred to as the act) to rigorous imprisonment for a term of 10 years and also to pay a fine of Rs. 1,00,000/ -. It was also provided that in default of payment of fine, he would further undergo rigorous imprisonment for a term of six months. 2. The background facts of. the case are that the appellant Ekram Waris was noticed by the police party of which PW 3 Sri Ram Tripathi, S. I. was the leader, while they were on patrol duty on 7-3-1996. The appellant having seen the police personnel approaching him tried to run away. But the police party having sensed something foul in such conduct of the accused chased and apprehended him at once. On interrogation, the accused told that he was carrying some heroin for his personal use as well as for the purposes of its trafficking. PW 3, Sri Ram Tripathi, S. I. gave option of the personal search of accused before a Magistrate or a Gazetted Officer but the appellant replied that he was willing for his search to be taken by the police personnel present there. Thereafter, each member of the police party gave option of his search to the accused to assure him that they were not in possession of any contraband with them. Thereafter, the search of the appellant was taken in which 10 small packets of contraband heroin (Ext. 1) weighing about 1/2 gram were recovered. These packets recovered from a matchbox and after its recovery the packets were kept in the same matchbox and were sealed on the spot itself. The recovery memo was prepared on the spot and after obtaining signature of the accused on it a copy of the same was provided to him. The accused alongwith recovered contraband was brought to the Police Station and the F. I. R. was registered on the basis of recovery memo. The recovered contraband was kept in the police Malkhana and the matter was reported by PW 3 immediately to his officer superior, the in- charge, Inspector of the Zamaniya Police Station. 3. The accused alongwith recovered contraband was brought to the Police Station and the F. I. R. was registered on the basis of recovery memo. The recovered contraband was kept in the police Malkhana and the matter was reported by PW 3 immediately to his officer superior, the in- charge, Inspector of the Zamaniya Police Station. 3. The investigation was handed over to PW 5, S. I. Dev Narayan Pandey, who started it and recorded the statements of the witnesses. He inspected the spot of recovery and prepared its site plan (Ext. Ka-5 ). On 03-4-1996, he sent the recovered contraband for chemical analysis to the forensic laboratory, Lucknow through PW 2-Raj Kumar. Thereafter, on completion of the investigation, he submitted the charge sheet before the Court. 4. The report of Chemical Analyst (Ext. Ka-7) was received by the Investigating Officer on 30. 08. 1996 in which all the 10 small packets of contraband were found to be heroin. 5. The prosecution in support of its version has examined PW 1- Constable, Kailash Nath Singh, a member of police party, PW 2- Constable, Raj Kumar, who had taken the recovered contraband for chemical examination from Zamaniya Police Station to Lucknow after obtaining the order of Chief Judicial Magistrate for its analysis, PW 3, the recovery officer, Sri Ram Tripathi, PW 4, the Constable Shiv Chandra Yadav, who registered the case at the Police Station and PW 5, the Investigating Officer, Dev Narayan Pandey. 6. The prosecution has also proved the relevant documents Ext. Ka-1 to Ka-7, which include the recovery memo, chek F. I. R. , site plan of the spot of recovery, charge sheet and the report of Chemical Analyst. 7. The accused, after not pleading guilty to the charges, had stated under Section 313 Cr. P. C. before the Court that no recovery was made from him and that he was brought from his residence by the police to Zamaniya Police Station and was falsely challaned in this case. The accused, however, has neither submitted any document nor has examined any witness in his defence. 8. I have heard Sri R. C. Yadav, learned Counsel for the appellant and the A. G. A. 9. The accused, however, has neither submitted any document nor has examined any witness in his defence. 8. I have heard Sri R. C. Yadav, learned Counsel for the appellant and the A. G. A. 9. The accused appellant is said to have been apprehended by the police party on giving a little chase when he was found in some suspicious state and after he was apprehended, the recovery officer - PW 3 claims to have found about 1/2 a gram of heroin from us personal search. That recovered article, after observing due formalities of sealing etc. was brought to the Police Station and F. I. R. was lodged on the basis of recovery memo. In this case the witnesses were only police personnel and it has been argued from the side of the appellant that in such cases independent witnesses should have been taken from the spot of the recovery. If the search party has not taken any independent witness from the place of recovery, the story of the prosecution becomes suspicious. In the present case, the recovery is said to have been suddenly done by the police party from the personal search of the accused when he was found conducting himself in an unnatural manner. There was no prior information to the police party that this accused would be coming with certain amount of contraband heroin. Therefore, there was no occasion for the police party to have arranged the independent witness from public for the purpose of recovery. It has come in the statement of PW 1 and PW 3, who are the witnesses of fact that certain passersby were asked to become witnesses for this recovery but none of them agreed for it and as such, no public witness could be available. In such circumstances, even if the statements of PW 1 and PW 3 are not substantiated by a witness from public, it cannot be said that the evidence given by those witnesses cannot be safely relied upon and should be discarded merely on the ground that they belong to police force. In fact, the evidence of police witnesses need to be subjected to strict scrutiny and as far as possible its corroboration on material particulars should be sought from the circumstances and other materials available on the record (Pradeep Narayan Madgaonkar v. State of Maharashtra, 1996 (1) JIC 60 (SC) : (1995) 4 SCC 255 ). In fact, the evidence of police witnesses need to be subjected to strict scrutiny and as far as possible its corroboration on material particulars should be sought from the circumstances and other materials available on the record (Pradeep Narayan Madgaonkar v. State of Maharashtra, 1996 (1) JIC 60 (SC) : (1995) 4 SCC 255 ). As already observed above that the passersby, who were requested by the police party when did not agree to become witness of this recovery, it would be highly unjustified to discard the statements of police witnesses (PW 1 and PW 3 ). The statements are to be strictly scrutinized and,-find out if it gets sufficient corroboration from other materials, corroborative evidence and the circumstances available in the case. Nothing has been suggested either to PW 1 or PW 3 that they could have any animus to implicate the appellant accused falsely in a case of such recovery. Nothing has been stated by the accused even in his statement given under Section 313 Cr. P. C. that the police witnesses for one or the other reasons, were inimical against him. Therefore, to reject the evidence of such witnesses on the ground that they are interested people to see that the accused is convicted and sentenced in such a case, would be extremely unjustifiable and their statements have been rightly not discarded by the trial Court. 10. As regards the corroboration of evidence given by these witnesses (PW 1 and PW 3), it gets full corroboration from the recovery memo (Ext. Ka-1), the F. I. R. (Ext. Ka-3) and the related G. D. (Ext. Ka-4), which refer; to the lodging of the report and also deposit of the recovered contraband (Ext.-1) in the Malkhana of the Police Station as well as lodging of the accused to lock up at the Police Station. The statements of PW 1 and PW 3 are further corroborated by the report of the Chemical Analyst (Ext. ka-7), which testifies to the fact that the recovered contraband was heroin. Evidence of these witnesses also gets full corroboration by the production and proving of the recovered contraband (Ext. 1) before the Court. The statements of PW 1 and PW 3 are further corroborated by the report of the Chemical Analyst (Ext. ka-7), which testifies to the fact that the recovered contraband was heroin. Evidence of these witnesses also gets full corroboration by the production and proving of the recovered contraband (Ext. 1) before the Court. This corroborative evidence supporting the substantive evidence given by the witnesses will definitely render such evidence to be wholly reliable even on strict scrutiny and nothing has been elicited in the cross-examination of these witnesses as to render the account of incident given by them as suspicious to the least extent. Thus, the evidence of PW 1 and PW 3 fully corroborated in all material particulars by the corroborative evidence available on the record, cannot be doubted and the trial Court has rightly placed full reliance upon such evidence produced before it. The evidence of such departmental or police witnesses has been doubted by the Court s only in the cases when in one or the given situation/circumstance, their conduct is found to be unnatural or otherwise suspicious while making recovery and doing the formalities, as required under law. Here in the present case, everything starting from the interrogation of the accused till they brought the recovered contraband and accused to the Police Station and the F. I. R. was lodged, has been meticulously fair and flawless. The recovery of heroin as such, cannot be doubted for want of independent witness in the case. 11. The recovery officer PW 3 has very specifically given out in his evidence before the Court that on the spot when the accused appellant was apprehended after chase, he on interrogation stated that he was carrying some heroin with him for his personal use as well as for its trafficking. On getting this information, PW 3 made up his mind to recover the contraband and he immediately gave options to the accused, as required under Section 50 of the Act, for his search to be taken in presence of a Gazetted Officer of the department or a Magistrate to which the appellant told that his search be taken by the police personnel only. He does not want to be taken to any Magistrate or Gazetted Officer for the said purpose. It was thereafter, his search was taken by PW 3 and the contraband was recovered. He does not want to be taken to any Magistrate or Gazetted Officer for the said purpose. It was thereafter, his search was taken by PW 3 and the contraband was recovered. There is full and complete compliance of the requirement, as envisaged under the provisions of Section 50 of the Act. PW 3 is also said to have given out in his evidence before the Court below that he, after reaching the Police Station, reported the whole matter to his immediate officer superior, the Inspector-in-charge of the Police Station. Thus, it is quite clear that the compliance of Section 57 of the Act was also made. 12. The alleged contraband heroin (Ext. Ka-1) was sent to the laboratory for chemical analysis after obtaining direction to this effect from the Chief Judicial Magistrate concerned and the heroin was taken from police Malkhana to the laboratory at Lucknow by PW 2 Raj Kumar. His statement is the link evidence in the case to prove that the article after its recovery and after it was kept in the Malkhana of the Police Station, it was not meddled with and its seal remained intact. He took it from Malkhana to the forensic laboratory, Lucknow. 13. It was with the aforesaid overwhelming evidence available in the case that the learned Sessions Judge in the present case held that the prosecution had succeeded to bring home the guilt for the offences punishable under Section 8/21 of the Act against the appellant beyond reasonable shadow of doubt and the findings so recorded by him are not assailable in the present appeal. 14. In view of the aforesaid, the appeal having no force is hereby dismissed and the judgment and order of conviction and sentence dated 30. 06. 1997 passed by the learned Sessions Judge, Ghazipur is hereby affirmed. 15. The appellant is said to have been enlarged on bail during the pendency of this appeal but later on in pursuance to warrant issued by the Court he is said to have been lodged again inside the lock up. In the light of this fact, the Court below shall forward the conviction warrant in pursuance to the order passed in this appeal and the appellant Ekram Waris shall serve out the sentence, as imposed against him. Appeal dismissed. .