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2012 DIGILAW 499 (UTT)

Anand Bhandari v. State of Uttarakhand

2012-08-23

SERVESH KUMAR GUPTA

body2012
Judgment : Servesh Kumar Gupta, J. This appeal has been preferred by the appellant against the judgment and order dated 24/27.9.1999, passed by the Additional Sessions Judge, Dehradun in Special Sessions Trial No. 23/94, State v. Anand Singh Bhandari, whereby the appellant Anand Bhandari has been convicted under Section 8/20 of the NDPS Act and sentenced to undergo ten years’ rigorous imprisonment and a fine of rupees one lakh. Accused appellant was simultaneously tried in Sessions Trial No. 25/96, wherein he has been convicted under Section 25 of the Arms Act and sentenced to undergo one year’s rigorous imprisonment. All the sentences have been directed to run concurrently. 2. In short, the prosecution version is that on 23.4.1993, police got an information that appellant does the business of vending contraband charas. So, one SI Sharad Kumar of Police Station Cantt. Dehradun taking few constables with him proceeded towards the spot where the accused was standing. The said SI sent one of the fellow constables, Ashok Kumar to fetch the public witnesses and then reach at the spot. All told, the police personnel nabbed the accused. He was apprised regarding his right to be searched before a Gazetted Officer or a Magistrate, but he waived his right and asked the police personnel to make search of his person. Accordingly, the SI searched his person and recovered 40 gms of charas and a country made pistol. Recovery memo Ex. A-1 was prepared at the spot. All other formalities were completed by the police party and after investigation chargesheet was submitted against the accused appellant. 3. Prosecution examined all four constables and one SI to prove its case. PW6 Dr. OP Taneja, Joint Director, was also examined to prove that the contraband narcotic recovered from the accused was charas. After conclusion of the trial, the court below found the accused guilty and sentenced him as stated above. 4. Learned Counsel for the appellant argued that no compliance of Section 50 of the NDPS Act was made by the nabbing party. He must have been taken to a Gazetted Officer or a Magistrate before the search was conducted upon his person. The mention of denial on the part of the accused from being taken to the Magistrate or a Gazetted Officer has been done in the recovery memo by the police personnel themselves. Accused never waived his right. He must have been taken to a Gazetted Officer or a Magistrate before the search was conducted upon his person. The mention of denial on the part of the accused from being taken to the Magistrate or a Gazetted Officer has been done in the recovery memo by the police personnel themselves. Accused never waived his right. It also seems to be very ridiculous that all police personnel including the aforenmaed SI offered the accused to take search of every police personnel in order to rule out the possibility of having such charas with the police. Further it has been stated in the recovery memo that one Constable Ashok Kumar was sent to procure the public witnesses but he returned with vacant hands and apprised the SI that no public man is ready to be a witness of the incident. 5. Story of the prosecution does not seem to be trustworthy because Constable Ashok Kumar has not been examined by the prosecution. Further, the map of the spot Ex. A-7 as prepared by the Investigation Officer manifests that there are several shops and houses near the spot. So, it was incumbent upon the police party to procure the neighbouring witnesses present either in their shops or in the houses. But it was not done. Besides it also appears to be improbable that a young man standing to sell the illegal charas in his possession and at the same time will have an empty country made pistol with him. That country made pistol if he was having should have been with some cartridges. Only then there would have been some propriety to possess the same. Court is not inclined to believe that at the relevant time when he was allegedly selling the illicit sulfa/charas, then he was having a country made pistol with him. 6. Here it would be pertinent to mention a precedent of Hon’ble Apex Court rendered in case of State of Punjab v. Jagga Singh, reported in AIR 1998 SC 3113 . In the said case, accused was allegedly found in possession of unlawful arms i.e. gun and cartridges, but there was no evidence that said arms and cartridges were sent for examination to CFSL. There was also no report of CFSL or any other evidence that the said gun was in working condition and that the cartridges were live. In the said case, accused was allegedly found in possession of unlawful arms i.e. gun and cartridges, but there was no evidence that said arms and cartridges were sent for examination to CFSL. There was also no report of CFSL or any other evidence that the said gun was in working condition and that the cartridges were live. In these facts and circumstances, the Hon’ble Apex Court disbelieved the prosecution story. In the instant case, simply a country made pistol has allegedly been recovered. There is no recovery of any live or dead cartridges. The pistol was even not sent to CFSL for examination. So, there is no report available on the record that whether the said pistol was in working condition or not. Then it is difficult to believe that the accused, who was found in possession of 40 gms charas with the object to sell it, will keep a country made pistol without any cartridges either loaded in the pistol or simply in his possession at the relevant time. So, in this regard, the entire prosecution story, as stated by the police party, appears to be a cock and bull story and the Court feels that it is not justified to sentence the accused appellant for such a long period simply for the alleged recovery of 40 gms charas and that too is not proved by the prosecution. Accused has already been in captivity for 5 and half months. So, leaving the period of caption apart, the Court is not at all satisfied with the veracity of the prosecution version. It is not supported with any reliable evidence. 7. For the reasons recorded above, the appeal deserves to be allowed. It is, accordingly, allowed. Impugned judgment and order date 24/27.9.1999, passed by the Additional Sessions Judge, Dehradun, is hereby set aside. Conviction and sentence awarded to the appellant are quashed. Appellant Anand Bhandari is on bail. His bail bond is cancelled. Sureties are discharged. He need not surrender unless wanted in any other case. 8. Let a copy of this judgment and order be sent to the trial court for its compliance. Lower court record be also sent back.