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2005 DIGILAW 653 (ALL)

RAM PAL v. STATE OF U P

2005-04-06

UMESHWAR PANDEY

body2005
UMESHWAR PANDEY, J. This criminal appeal has been preferred against the order of conviction and sentence dated 21-8-2000 passed by the Additional Sessions Judge, Kanpur Dehat. 2. The facts as alleged against the appellant are that on 2-11- 1996 while the recovery officer PW 1, Inspector, Ashwani Kumar Sinha was going to make arrest of certain accused in a murder case alongwith his police party, the appellant was found coming on the road. He turned back and tried to escape at which PW 1 got suspicious about him and after a little chase he was arrested by the police party. He disclosed his name and on interrogation as to why he was trying to run away, he admitted of carrying 3 Kgs. of charas. The arresting officer when under Section 50 of N. D. P. S. Act (hereinafter referred to as the act), informed him of his right for the search being taken in presence of a Gazetted Officer or a Magistrate, he replied that his search be taken by the police people present there. As such, during the search 3 Kgs. of contraband appearing to be charas was recovered from a plastic bag carried by him. PW 1 took out two samples of 25 gms, each from the recovered material and prepared its samples. The remaining material was sealed in the same bag in which the accused was carrying it. Thereafter, the recovery memo (Ext. Ka-1) was prepared and a copy of the same was furnished to the appellant. The recovered article and the accused were brought to the Police Station and on the basis of recovery memo, the report was lodged. 3. The case was investigated by PW 4. He recorded the statements of the witnesses and inspected the place of recovery and prepared its site-plan (Ext. Ka-4 ). Thereafter, he submitted the charge- sheet in this case. 4. After submission of charge-sheet, the report of Chemical Analyst (Ext. Ka-6) was received from the Lucknow Laboratory and it was submitted before the Court. In the report the sample was found to be charas. 5. The accused had pleaded not guilty to the charges. He stated that there was some recovery of charas from the possession of another person namely Hari Mohan and out of the recovered contraband of his possession, a part of it was planted in the present case and the appellant has been falsely implicated. 6. 5. The accused had pleaded not guilty to the charges. He stated that there was some recovery of charas from the possession of another person namely Hari Mohan and out of the recovered contraband of his possession, a part of it was planted in the present case and the appellant has been falsely implicated. 6. The prosecution had examined recovery officer, Ashwani Kumar Sinha as PW 1, Constable Rajeshwar Prasad Yadav as PW 2, Constable Jayram as PW 3 and S. I. Kashi Ram as PW 4. PWs 1 and 2 are the witnesses of the recovery whereas PW 3 is Constable Jayram, who registered the case at the Police Station and PW 4 is the Investigating Officer. The defence in the present case has not produced any evidence oral or documentary. 7. I have heard Sri Prashant Kumar Singh, learned Counsel for the appellant and learned A. G. A. and have perused the entire record of the trial Court. 8. It is a case of recovery of contraband charas wherefrom the recovery officer, PW 1 claims to have taken two samples of 25 gms. each and prepared its samples packets on the spot. This fact finds reference in the recovery memo as well as in the statement of PWs 1 and 3 both. The usual procedure for preparation of samples is that the part of the recovered contraband is taken for such purpose and while preparing parcel packet, it is duly sealed and sample of such seal is separately prepared. Learned Counsel for the appellant, while emphasizing to the fatal error committed in the evidence by the prosecution in this context, has pointed out that neither the recovery memo nor the oral evidence recorded from the side of the prosecution give any link of the facts that such sample which was prepared was sealed the same was sent for analysis. The arrest and seizure memo (Ext. Ka-1) shows that two pieces of 25 gms. each were taken from bulk contraband recovered from the appellant and two parcel packets of the samples were prepared. It does not state that the sample was also sealed on the spot. The seizure report however, states that some sample was prepared. This report also speaks of the remaining contraband having been sealed on the spot itself in the same bag in which it was being carried by the accused. It does not state that the sample was also sealed on the spot. The seizure report however, states that some sample was prepared. This report also speaks of the remaining contraband having been sealed on the spot itself in the same bag in which it was being carried by the accused. So also the statement of PW 1, who simply says that two samples of 25 gms. each were taken from the bulk charas but he does not say before the Court that the samples were duly prepared and sealed on the spot. The statement of PW 3 is also on the same line when he states that two samples were taken from the recovered contraband being about 25 gms. each, but he is also silent about sealing the samples on the spot. Obviously, the prosecution has not supplied the evidence before the Court that the samples, which were prepared and later on claims to have been sent for chemical analysis, were actually sealed on the spot. If unsealed samples are brought to the Police Station and lodged with police Malkhana, it has absolutely no evidentiary value to prove the fact that the recovery officer had actually recovered the contraband charas from the possession of the appellant, which was sent for chemical analysis. If the samples had not been sealed and it was kept as such and later on sent for chemical examination may be in sealed condition, it will not be treated to be a sample, which was actually taken from out of the allegedly recovered contraband. 9. The learned Counsel for the appellant has also pointed out that the statements of PWs 1 and 3 who are the persons present while the recovery was being conducted, have contradicted each other on material points, rendering the whole case of the prosecution as doubtful. PW 1 Ashwani Kumar states that he had proceeded from the Police Station in connection with arrest of certain accused involved in a murder case when he suddenly noticed the present appellant coming in a suspicious state and arrested him with contraband. PW 3 stated that Inspector Ashwani Kumar alongwith him and other police personnel had proceeded from the Police Station in connection with certain official duty and while on way, he (PW 1) received information about the accused carrying some contraband. PW 3 stated that Inspector Ashwani Kumar alongwith him and other police personnel had proceeded from the Police Station in connection with certain official duty and while on way, he (PW 1) received information about the accused carrying some contraband. The learned Counsel contends that such a material contradiction appearing in both the statements are such which cannot be over looked by any Court. Even if there was prior information about the accused carrying contraband, it was not the fact, which could be simply overlooked by PW 1 and his statement that he got suspicious about, the appellant from his conduct and then he chased and arrested him is not to-be easily acceptable by the Court as true. The argument of the learned Counsel appears to be quite cogent. PW 1, who is the recovery officer in the present case if, as per PW 3, had obtained prior information about the appellant carrying 3 kgs. of charas, he had no good reason to conceal this fact and not to divulge it before the Court while in evidence. 10. In this context, another fact is quite relevant that if the police party had proceeded in connection with investigation of a case of murder from the Police Station, the relevant entries of such departure of police party should have been there in the General Diary (G. D.) and it was incumbent upon the prosecution to prove the extract of the said G. D. in evidence before the trial Court. To establish all these facts, the burden lay on the prosecution only. This fact is, though given in the oral evidence that the police party had proceeded from Police Station for the aforesaid purpose but if this fact is to be proved by the documentary evidence also, that proof should to be necessarily produced before the Court. In case the prosecution failed to produce such an important peace of evidence, the very root of its case gets loosened and the structure of prosecution as such could not be said to be healthy. It gives rise to lots of suspicions raised against its genuineness. 11. In case the prosecution failed to produce such an important peace of evidence, the very root of its case gets loosened and the structure of prosecution as such could not be said to be healthy. It gives rise to lots of suspicions raised against its genuineness. 11. Learned Counsel for the appellant has further pointed out that after such a heavy recovery of charas from the possession of the appellant, when the recovery officer (PW 1) alongwith his police party came back to the Police Station, the occasion for compliance of provisions of Section 57 of the Act arose, which in the present case is not shown to have been proved by the prosecution. Section 57 of the Act requires that whenever there is arrest and seizure of contraband, the arresting officer, within 24 hours next after search and seizure, shall make full report of all the particulars of arrest and seizure to his immediate officer superior. In the present case, there is no evidence either in the statement of PW 1 or even in the statement of PW 3 to show that any such compliance of the requirement of Section 57 of the Act has been done. It is true that the compliance under the aforesaid provisions of the Act is just directory but non-compliance does effect the bona fide of the arrest and seizure. It may be said that non-compliance may not vitiate the trial and may not prejudice the accused but it is definite requirement of law and if it has not been observed in letter and spirit, it will be presumed by the Court that an important peace of evidence, which could have been in furtherance to the other proof of the alleged recovery, has not been produced by the prosecution. If the compliance of the provisions of Section 57 of the Act was made, a copy of this report should have been filed. It would have been a better proof of the fact that the recovery officer made this recovery of the seized articles after arrest of the accused. As such, in the aforesaid view of the matter and also since there is no proof of compliance to the requirements of Section 57 of the Act on record, the prosecution has to suffer for it. 12. As such, in the aforesaid view of the matter and also since there is no proof of compliance to the requirements of Section 57 of the Act on record, the prosecution has to suffer for it. 12. Learned Counsel further submits that there is no link evidence advanced from the side of the prosecution about preservation and safe custody of the samples and also of the fact that the same sample, which is claimed to have been prepared on the spot, was actually sent for chemical analysis to the laboratory. The evidence recorded in the trial does not refer to any such link evidence at all. PWs 1 and 3 are silent on this point as to how and in what state and at which time or on which date the sample was taken from the police Malkhana and was transmitted under permission from the Magistrate or any other competent authority for analysis to the laboratory at Lucknow. The chemical examination report (Ext. Ka-6) also does not speak as to how and in what manner the sample was brought to laboratory and was deposited with it for such analysis. The report indicate a of certain sealed articles having been received by it on 8-11-1996 and nothing beyond it. Whether the sample, which was prepared on the spot, was sent for chemical analysis or it was some other sample sent for, is a question, which does not find its answer from the evidence. Under these circumstances, when this fact also becomes doubtful, it cannot be safely held that the recovery, which was made from the appellant, was actually of contraband charas or anything else. It is true that on the aforesaid point about absence of link evidence, there is nothing in the cross examination of PWs 1 and 3 but still that does not exonerate the prosecution from its burden of proving such link evidence, which has to be essentially advanced by it for the purposes to prove the alleged seizure of contraband charas. 13. In the aforesaid facts and circumstances, I gather from the evidence that the prosecution has virtually failed to establish the guilt for recovery of contraband charas from the possession of appellant and the trial Court without taking into consideration the aforesaid aspects of the matter, has recorded an order of conviction and passed the sentence. 13. In the aforesaid facts and circumstances, I gather from the evidence that the prosecution has virtually failed to establish the guilt for recovery of contraband charas from the possession of appellant and the trial Court without taking into consideration the aforesaid aspects of the matter, has recorded an order of conviction and passed the sentence. As such, the appellant accused is entitled for acquittal in this case for the offence punishable under Section 20 (b) (ii) (C) of N. D. P. S. Act. 14. In result, the appeal is allowed and the judgment and order dated 21-8-2000 is hereby set aside. 15. The appellant accused Shri Ram Pal is hereby acquitted for the aforesaid offence. He is in lock up and shall be released forthwith if not wanted in any other case. 16. The office is directed to send a certified copy of this order alongwith original record of the case to the trial Court for onward follow up action in compliance of this order. Appeal allowed. .