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2012 DIGILAW 549 (UTT)

STATE OF UTTAR PRADESH v. HARBINDER

2012-09-07

PRAFULLA C.PANT

body2012
JUDGMENT Hon’ble Prafulla C. Pant, J. This appeal, preferred under section 378 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 11.03.1999, passed by IInd Additional Sessions Judge, Hardwar, in Special Sessions Trial No. 07 of 1996, and Special Sessions Trial No. 09 of 1996, whereby said court has acquitted the accused/respondents Harbinder and Pradeep, from the charge of offences punishable under section 8/20 of Narcotic Drugs and Psychotropic Substances, Act, 1985, (for short N.D.P.S. Act). 2. Heard learned counsel for the appellant, and learned counsel for the respondents, and perused the lower court record. 3. Prosecution story, in brief, is that PW1 Sub Inspector Mahesh Chand alongwith PW2 Constable Ram Kishore Sharma and some other constables, were on patrol duty and at about 20.50 hours in between Brahampuri and Nirmala Cantt., started checking the vehicles. From the side of Jwalapur a two wheeler vehicle bajaj scooter make Chetak bearing registration no. UP10A8871 was seen coming with two riders. It was stopped and driving license etc., were demanded from accused/respondent Harbinder, who was driving the two wheeler. He failed to show the papers, thereafter the police party suspected that the two accused were carrying some contraband item and took their search, and it was found that accused/respondent Harbinder was carrying 200 grams of cannabis (CHARAS) and accused/respondent Pradeep was carrying 225 grams cannabis (CHARAS). Both the recovered packs of cannabis were sealed at the spot, recovery memo was prepared and the accused/respondents were arrested. On the basis of the recovery memo Crime No. 131 of 1995 and Crime No. 132 of 1995, were registered in respect of offence punishable under section 20/22 of Narcotic Drugs Psychotropic Substances Act, against accused/respondents Harbinder and Pradeep respectively. The investigation was taken up by PW3 Sub Inspector R.P.Singh. After interrogating the witnesses, and completion of investigation, charge sheets appear to have been filed against the two accused separately. 4. In both the cases after giving necessary copies, the trial court on 09.01.1998, framed charge of offence punishable under section 8/20 of Narcotic Drugs and Psychotropic Substances Act, against the two accused separately to which they pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Sub Inspector Mahesh Chand, PW2 Ram Kishore Sharma and PW3 Sub Inspector R.P. Singh. On this prosecution got examined PW1 Sub Inspector Mahesh Chand, PW2 Ram Kishore Sharma and PW3 Sub Inspector R.P. Singh. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which they alleged that the recovery as well as investigation was false. However, no evidence in defence was adduced. After recording the evidence of the parties, the trial court found that there was neither compliance of section 50 of Narcotic Drugs and Psychotropic Substances Act, nor that of section 55 and nor that of 57 of said act. As such, it disbelieved the prosecution case and acquitted the two accused from the charge. Aggrieved by said judgment and order dated 11.03.1999, the state filed this appeal before Allahabad High Court from where it is received by transfer under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. 5. Section 55 of Narcotic Drugs and Psychotropic Substances Act, reads as under:- “An officer in charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and and all samples so taken shall also be sealed with a seal of the officer in charge of the police station”. 6. On perusal of the evidence of PW1 Mahesh Chand, it appears that though has stated that Station Officer had put seal and signatures, but he failed to show the same in the court, when asked by the trial court to show the same, in the material exhibit produced in the court. In the circumstances, this Court is of the view that trial court has rightly held that the provision of section 55 were not complied with. 7. Also, the prosecution failed to show that the compliance of section 57 of Narcotic Drugs and Psychotropic Substances Act, was made as PW1 Mahesh Chand admitted that no information of arrest or sealed items was given to the higher authorities. 7. Also, the prosecution failed to show that the compliance of section 57 of Narcotic Drugs and Psychotropic Substances Act, was made as PW1 Mahesh Chand admitted that no information of arrest or sealed items was given to the higher authorities. Apart from this, it is argued on behalf of the accused/respondents the quantity of cannabis said to have been recovered from the accused/respondents Harbinder and Pradeep, is only 200 grams and 225 grams respectively. It is further argued that such quantity could have been easily planted by the police and there was no public witness of the recovery. 8. In the above circumstances, order of acquittal passed by the trial court appears neither to be perverse, nor against the evidence on record. 9. Therefore, this Court is of the view that the impugned judgment and order challenged by the State does not require interference of this Court. 10. Accordingly, the appeal is dismissed. Lower court record be sent back.