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2010 DIGILAW 2862 (ALL)

GYANENDRA SINGH @ DUNGARI v. STATE

2010-09-17

BALA KRISHNA NARAYANA

body2010
JUDGMENT Hon’ble Bala Krishna Narayana, J.—Heard learned counsel for the applicant and the learned AGA for the State. This Appeal has been filed by the appellant Gyanendra Singh alias Dungari against the judgment and order dated 4.6.2005 passed by Additional Sessions Judge, Court No. 8, Fatehpur in SST No. 36 of 2004 State v. Gyanendra Singh by which he convicted the appellant under Section 18/20 NDPS Act Case Crime No. 16/2004, Police Station Asothar, District Fatehpur and sentenced him to undergo ten years’ RI and a fine of Rs.one lac in default of payment of fine further simple imprisonment of two years. 2. According to the prosecution version while SHO Police Station Asothar district Fatehpur Sri Ram Bhajan Singh alongwith other police personnels were searching the accused persons wanted in a criminal case , they received information through mukhbir khas that one Gyanendra Singh alias Dungari who was carrying on the business of selling illicit Ganja was standing at infront of his house in village Santo Joga, and was having Ganja in his possession. Believing the said information to be true the police force reached the place described by the mukhbir khas and found a man standing infront of a house with a bag. Upon being identified by the mukhbir khas that the said man was Gyanendra Singh , the police personnels called him for being searched whereupon he turned around and started running towards his house whereafter the police personnel caught him after chasing him for about 30-35 yards. Upon inquiry the man so caught disclosed that his name was Gyanendra Singh and he was carrying one and half Kilograms of illicit ganja in his bag. Upon being given an option for being searched before the gazetted officer or a Magistrate, the appellant declined the said offer and requested the police force to search him. Thereafter the police searched the appellant and the bag which he was carrying and found one and half Kilograms of Ganja in his bag. A sample of 50 grams was obtained and kept in separate piece of cloth and sealed. The remaining seized substance was kept back in the bag and sealed. Recovery memo and specimen seal were prepared on the spot. The sample was sent for chemical examination and according to the report of the Chemical Analyst the sample contained Ganja. 3. A sample of 50 grams was obtained and kept in separate piece of cloth and sealed. The remaining seized substance was kept back in the bag and sealed. Recovery memo and specimen seal were prepared on the spot. The sample was sent for chemical examination and according to the report of the Chemical Analyst the sample contained Ganja. 3. On the basis of the aforesaid recovery and arrest Case Crime No. 16 of 2004, under Section 18/20 NDPS Act was registered against the appellant at Police Station Asothar District Fatehpur. The Investigating Officer submitted a chargesheet under Section 18/20 NDPS Act after investigation on the basis of which the Magistrate took cognizance and the case was committed to be tried by Additional Sessions Judge in SST No. 36 of 2004 State v. Gyanendra Singh under Section 18/20 NDPS Act Crime No. 16/2004. Even before the Public Prosecutor had opened the case for prosecution and even before framing of the charge the appellant moved an application before the Sessions Judge for recording his confession that he had committed the offence and accordingly his confession was recorded on 4.6.2005 and relying upon the aforesaid confession the learned Additional Sessions Judge after dispensing with the formal proof of prosecution documents convicted the appellant for offences under Sections 18/20 NDPS Act for being in possession of unauthorised one and half kilograms of Ganja and sentenced him to undergo ten years’RI and a fine of Rs. one lac and in default of payment of fine further two years’ simple imprisonment. 4. Learned counsel for the appellant contended that the Court below committed a manifest error of law in convicting the appellant on the basis of his confessional statement which was recorded without the charge being framed and made known to the appellant and without the appellant being given an opportunity of being tried for the offence with which he may have been charged. 5. 5. He further contended that according to Section 36 (C) of the NDPS Act the provisions of the Code of Criminal Procedure have been made applicable to the proceedings before the Special Court constituted specially for trying offences punishable under NDPS Act but in the present case the Court below invented its own procedure totally ignoring the procedure prescribed for trial before a Court of Sessions and convicted the appellant on the basis of his alleged confessional statement which was recorded even before the framing of charge. 6. Learned counsel for the appellant next contended that after the appellant had moved an application for for making confession before the Court below he had also filed an application that an Amicus Curiae be appointed for conducting the case on his behalf as he was not in a position to afford a counsel but no order was passed on the said application. 7. Learned counsel for the appellant lastly contended that where the law provides a particular procedure for doing an act then such act can only be done in the manner prescribed and in no other manner. This having not been done in the present case the impugned judgment can not be sustained and is liable to be set aside. 8. Per contra learned AGA made his submissions in support of the impugned judgment and submitted that the judgment passed by the Court below does not suffer from any illegality or infirmity warranting any interference by this Court. 9. I have very carefully examined the submissions advanced by the learned counsel for the parties and perused the impugned judgment as well as the record of SST No. No. 36 of 2004 State v. Gyanendra Singh and I find that the submissions made by learned counsel for the appellant have substance and the same are liable to be accepted. The record shows that the appellant was challaned by at Police Station Asothar District Fatehpur, under Section 18/20 NDPS Act on account being in possession of one and half kilograms of Ganja without any license. The record shows that the appellant was challaned by at Police Station Asothar District Fatehpur, under Section 18/20 NDPS Act on account being in possession of one and half kilograms of Ganja without any license. The record further shows that after the case had been committed for trial before the Additional Sessions Judge Court No. 8, Fatehpur, the appellant had moved an application dated 25.5.2004 before the Court below which is on record as paper No. 14Ka, with a prayer that Amicus Curiae may be appointed for conducting the case on his behalf as he was too poor to engage a counsel. There is nothing on record which may show that the appellant was provided Amicus Curiae or any order was passed on the said application. Prior to the filing of the application dated 25.5.2004 an application had been moved by the appellant on 4/5.9.2004, which is on record as Paper No. 17Ka2 stating therein that he was willing to confess his crime. The Court below however, without providing the appellant with Amicus Curiae recorded the confession of the appellant and convicted him on the basis of his confession. Neither the prosecution witnesses were examined nor documents which were exihibited were proved in accordance with law nor any charge was framed. The question which arises for consideration in the instant case is as to whether the judgment passed by the Court below can be sustained in view of the fact that the judgment of conviction was passed without following the prescribed procedure and whether the confessional statement of the accused could have been recorded before the framing of the charge and the appellant being given the option of being tried for the offence with which he may have been charged. 10. Section 36(C) of the NDPS Act which makes the provisions of the Code of Criminal Procedure applicable to proceeding of Special Court for trying the offence under the NDPS Act reads as hereunder: “36(C) The special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973(2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;” 11. Chapter XVIII of the Code of Criminal Procedure provides the procedure for trial before a Court of Sessions. Section 225 to Section 230 of the Chapter XVIII of Cr.P.C. which are relevant for the purposes of the present case are being reproduced herein below : “Chapter XVIII “ TRIAL BEFORE A COURT OF SESSION 225. Trial to be conducted by Public Prosecutor- In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. 226. Opening case for prosecution-When the accused appears or is brought before the Court in pursuance of commitment of the case under Section 209, the prosecutor shall open his case by describ ing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. 227. Discharge- If, upon consideration of the record of the case and the documents submitted therewith , and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 228. Framing of charge-(1)If after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section(1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. 229. Conviction on plea of guilty- If the accused pleads guilty, the Judge shall record the plea and may, in his discretion , convict him thereon. 230. 229. Conviction on plea of guilty- If the accused pleads guilty, the Judge shall record the plea and may, in his discretion , convict him thereon. 230. Date for prosecution evidence- If the accused refuses to plead, or does not plea, or claims to be tried or is not convicted under Section 229, the Judge shall fix a date for the examination of witnesses, and may, on the application of the prosecution , issue any process for comopelling the attendance of any witness or the production of any document or other thing.” Upon reading the aforesaid provisions jointly it is apparent that when the accused person appears or is brought before the Court in pursuance of a commitment of the case under Section 209 Cr.P.C. the prosecutor shall open his case by describing the charge brought against the accused and stating the evidence by which he proposed to prove guilt of the accused. 12. If upon consideration of the record the Court finds that there is no sufficient ground for proceeding against the accused, he shall be discharged. If however, after considering the record of the case and hearing the submissions of the accused and the prosecution the Judge is of the opinion that there is a ground for presuming that the accused had committed an offence , he shall frame charge in writing against the accused which shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. If the accused pleads guilty the Judge shall record the plea and may in his discretion convict him thereon. 13. In the present case the provisions of Section 225 and Section 229 have been given a total go-by by the Court below. The appellant’s confession was recorded and he was convicted on that basis even before the prosecution had opened its case and satisfied the Court that there was sufficient ground for proceeding against the accused and without the charge being framed, read out and explained to him and without the appellant being asked whether he pleaded guilty or claimed trial. None of the documents on which the prosecution proposed to rely for proving the charge against the appellant were proved and the formal proof thereof was dispensed with by the Court below. No prosecution witness was examined. 14. None of the documents on which the prosecution proposed to rely for proving the charge against the appellant were proved and the formal proof thereof was dispensed with by the Court below. No prosecution witness was examined. 14. From the above, it is crystal clear that there has been a complete miscarriage of justice in the present case. Further the Court below has arbitrarily sentenced the appellant for ten year’s RI and a fine of Rs.one lac and in default of payment of fine further Simple Imprisonment of two year’s for being in possession of merely one and half kilograms of Ganja which is slightly greater than the small quantity. 15. For the aforesaid reasons neither the conviction of the appellant nor the sentence awarded by the Court below can be sustained and the impugned judgment is liable to be set aside. The appeal is allowed. The judgment and order dated 4.6.2005 passed by Additional Sessions Judge, Court No. 8, Fatehpur in SST No. 36 of 2004 State v. Gyanendra Singh is set aside. The case is remitted back to the Court below for fresh trial. From the record it appears that for being in possession of one and half kilograms of ganja the appellant has already undergone imprisonment of more than four years and the applicant is on bail. He shall continue to remain on bail during the trial subject of course to his not misusing the liberty of bail. —————