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2005 DIGILAW 505 (ALL)

RAVI ALIAS NITU v. STATE OF U P

2005-03-17

UMESHWAR PANDEY

body2005
UMESHWAR PANDEY, J. This criminal appeal arises out of the judgment and order dated 16-3-1994 passed by the 1st Additional Sessions Judge, Saharanpur, convicting the appellant-Ravi alias Nitu and sentencing him to rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- in S. T. No. 933 of 1992 under Section 15 of N. D. P. S. Act (hereinafter referred to as the act ). 2. The appellant is said to have been arrested by the police patrol party, which also included by PW 1- Bhanu Pratap Singh and PW 2-B. L. Gautam, Sub-Inspector of Police Station Kotwali Nagar, Saharanpur. While the police party was on patrol duty in the night of 19-9-1992 at about 10. 30 a. m. , it noticed the present appellant alongwith Arun @ Bobby coming from opposite direction. They tried to escape after having seen the police party coming near them but the police getting suspicious against them, chased and the appellant alongwith his companion was thus, arrested. Both of them were carrying one bag each which the police party proposed to search. Accordingly PW 2, B. L. Gautam, Sub-Inspector gave an option to the appellant to get his search done in presence of a Magistrate or a Gazetted Officer. But both the accused persons agreed to give their search to the police party itself. Accordingly, the search was taken on the spot and 2-1/2 Kgs. of Doda powder was found kept in the respective bags of the appellant and the other accused. The recovered contraband was sealed on the spot and its recovery memo was prepared. A copy of the seizure memo was provided to each of them and in acknowledgment thereof their signatures were obtained on the seizure memo. The accused and the recovered contraband were brought to the Police Station and the case was registered. 3. The case was investigated by PW 3, Gyan Singh, Sub-Inspector. He recorded the statements of the witnesses. The recovered contraband was sent for chemical examination through Sessions Judge concerned which on examination was found to be Doda powder vide report of the Chemical Examiner (Ext. Ka-9 ). The Investigating Officer, after completing the entire formality in the matter, submitted charge-sheets against the appellant and the co-accused. 4. He recorded the statements of the witnesses. The recovered contraband was sent for chemical examination through Sessions Judge concerned which on examination was found to be Doda powder vide report of the Chemical Examiner (Ext. Ka-9 ). The Investigating Officer, after completing the entire formality in the matter, submitted charge-sheets against the appellant and the co-accused. 4. Both the cases of respective accused were jointly tried and the prosecution examined its witnesses Bhanu Pratap Singh, Head Constable, as PW 1 and B. L. Gautam, Sub-Inspector, as PW 2. They are the persons who claim to have made the recovery of contraband as members of the police party from the appellant. PW 3 is Gyan Singh, the Investigating Officer. 5. The accused appellant Ravi @ Nitu has denied the entire allegations of prosecution and stated that he had been falsely implicated on account of enmity with the police. 6. The trial Court, after having considered the evidence led from the side of the prosecution and other material available on record, found that the offence for which the accused was charged under Section 15 of the Act, had been proved to the hilt against him and accordingly convicted him for the same and sentenced him, as detailed above. 7. Since both the accused involved in the recovery had been convicted by the impugned order, they preferred their separate criminal appeals before this Court out of which the present has been heard and other criminal appeal No. 426 of 1994, the appellant of which had died during its pendency, has consequently abated vide order dated 15-4-2004. 8. I have heard Sri H. K. Sharma, learned Counsel for the appellant and the learned A. G. A. for the opposite party-State. 9. In the present case from out of the entire police party which claims to have recovered the alleged contraband from the possession of appellant, two of them being PW 1 and PW 2, Bhanu Pratap Singh and B. L. Gautam have been examined by the prosecution. It has been stated by them that the appellant alongwith other accused was arrested on the spot and on search having been taken with his agreement by the police, he was found in possession of 2-1/2 Kgs. of Doda Powder. It is consistence statement of both the witnesses that the recovered article was sealed. 10. It has been stated by them that the appellant alongwith other accused was arrested on the spot and on search having been taken with his agreement by the police, he was found in possession of 2-1/2 Kgs. of Doda Powder. It is consistence statement of both the witnesses that the recovered article was sealed. 10. Learned Counsel for the appellant in this context contends that though these witnesses claim to have sealed the alleged contraband but it is nowhere stated by them that any sample from out of the total stock of recovered contraband was prepared on the spot. Learned Counsel also submits that as per the Chemical Examiners report (Ext. Ka-9), the sample, which was received by the Chemical Examiner, was a packet of 50 gms. in sealed condition. Since there is no evidence on record as to how and when the said sample weighing 50 gms. was prepared, the whole story of the prosecution about the recovery of contraband Doda Powder from the possession of the appellant becomes unbelievable. It may reflect from the aforesaid report, which has been submitted by the Chemical Examiner to the Additional Sessions Judge, Saharanpur, that the sample was received from the said Court only but there is no substantive evidence available on record to establish this fact that the said sample was got prepared under the instructions and before the aforesaid Additional Sessions Judge. It is thus, clear that there is no material on record to establish as to when and in what circumstances the sample sent for expert opinion was prepared and sent to such Chemical Examiner. This report simply shows that the covering letter dated 7-10-1992 was sent by the Additional Sessions Judge to the Chemical Examiner while sending the sample. It was received there on 12-10-1992 but it is not clear from this report also that this sample was prepared before the Additional Sessions Judge or any other authority nor it is clear as to when the sample was prepared. It was received there on 12-10-1992 but it is not clear from this report also that this sample was prepared before the Additional Sessions Judge or any other authority nor it is clear as to when the sample was prepared. Though, there is no cross-examination on this point done to both the witnesses PW 1 and PW 2 from the side of defence but in order to establish its case the prosecution is supposed to place required evidence of fact that the sample of contraband was prepared in accordance with the provisions of the Act itself and that it was prepared either by the recovery officer or by the other authority or by a Court having jurisdiction in the matter. In case, such evidence is not advanced before the Court during the trial by the prosecution, there cannot be presumption of such fact by the Court that the sample was prepared in accordance with the requirements of the statute nor the prosecution shall be deemed to have proved, in such situation, that the sample which was sent for chemical examination to the forensic laboratory was actually a sample taken from out of alleged stock of recovered contraband. If such fact is not proved by the prosecution before the trial Court, it would be an erroneous finding of the trial Court if it holds that the article which was recovered from the possession of the accused was actually a contraband. It is a duty of prosecution to prove specifically by substantive evidence duly corroborated from other materials that the article which was recovered from the possession of the accused was actually a contraband keeping of which was an offence punishable under the Act. If some sample, which was sent to the expert for the opinion, was a contraband and prohibited article under the Act, the prosecution has to prove that the said sample was taken out from the recovered stock of the material seized from the accused. In the present case the prosecution has miserably failed to establish this fact before the Court and I doubt the wisdom of trial Court as to how it could record findings that the article recovered from the possession of the appellant was definitely a contraband viz. Doda Powder. 11. In the present case the prosecution has miserably failed to establish this fact before the Court and I doubt the wisdom of trial Court as to how it could record findings that the article recovered from the possession of the appellant was definitely a contraband viz. Doda Powder. 11. The other lacuna in the evidence of the prosecution, which has been pointed out by the learned Counsel for the appellant is the material contradictions, which have appeared in the statements of PW 1 and PW 2. PW-1 Bhanu Pratap Singh, Head Constable, has stated that the recovered packets from the appellant and the co-accused were brought to the police outpost and the contraband was got sealed there. On the contrary PW 2 B. L. Gautam, Sub-Inspector, says that the contraband recovered from the appellant was sealed on the spot and its seizure memo was also prepared in the light of electric torch on the spot itself. What is required in such cases of recovery that every formality, which has to be done in that regard, should be performed at the place of recovery itself. The place of recovery is the place of incident and if there is no impediment in observing the formality of preparation of seizure memo and sealing of contraband etc. there on the spot, these formalities have to be undergone and completed at the place of recovery only. The seizure memo (Ext. Ka-1) shows that after recovery of contraband the formalities of its sealing and preparation of seizure memo were observed on the spot itself, but the statement of PW 1, Head Constable, Bhanu Pratap Singh contradicts the statement of PW 2 as well as the recovery memo. In such situation, the effect of material contradiction appearing between the statements of two witnesses of fact can leave no place for any other conclusion than to hold the entire incident of recovery and seizure etc. as doubtful. There is no witness from public to support the version given by the aforesaid two witnesses. If the statement of PW 2 could have got support from another witness in that case the contradiction as appearing in the statement of PW 1 could have been not so material as to render the whole statement of PW 2 as untrustworthy. There is no witness from public to support the version given by the aforesaid two witnesses. If the statement of PW 2 could have got support from another witness in that case the contradiction as appearing in the statement of PW 1 could have been not so material as to render the whole statement of PW 2 as untrustworthy. But since there is no other substantive evidence about the seized articles having been sealed on the spot, the statement of PW 2 will not be taken to be sufficient to prove that everything was regular and in accordance with the established procedure in sealing of the article recovered from the appellant. 12. From the perusal of evidence of PW 1 and PW 2, it is also found that they have not given any evidence as to the preservation of alleged contraband after it was brought from the place of recovery to the Police Station. None of them state before the Court that the bags which contained contraband and which were recovered from the possession of the accused were kept at proper place duly prescribed for such safe custody. The provisions of Section 55 of the Act provide that such recovered contraband shall be kept within the charge of an officer-in- charge of a Police Station in safe custody pending the orders of the Magistrate. In the present case, both the witnesses PW 1 and PW 2 are silent about the fact as to where and in whose custody the alleged contraband as recovered from the appellant was kept. As such in absence of evidence about safe custody of the contraband the Court has found to treat it a case of violation in observance of the aforesaid provision of Section 55 of the Act. The prosecution case in such a contingency becomes wholly doubtful and it cannot be said that the article, which was produced and proved before the Court was actually the contraband which was recovered from the accused. 13. In the aforesaid facts and circumstances, it appears that the trial Court, without giving serious thought to the aforesaid aspects of the matter, has very cursorily seen the evidence and has recorded conviction in this case. The prosecution has miserably failed to establish the guilt for the offence punishable under Section 15 of the Act against the appellant, who is entitle to acquittal for the same. 14. The prosecution has miserably failed to establish the guilt for the offence punishable under Section 15 of the Act against the appellant, who is entitle to acquittal for the same. 14. In result, the appeal is allowed. The judgment and order of conviction and sentence dated 16-3-1994 passed by the Additional Sessions Judge, Saharanpur, is hereby set aside. The accused is said to be in lockup in pursuance to an warrant issued by this Court. He be released forthwith if not wanted in any other case. 15. Office is directed to send back the entire records of the trial Court alongwith a certified copy of this order to the said Court for due compliance and follow up action. Appeal allowed. .