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2015 DIGILAW 4026 (ALL)

CHINKU v. STATE OF U. P.

2015-12-17

MOHD.TAHIR

body2015
Judgment : This criminal appeal has been filed against the judgment and order dated 17.6.2008 passed by the Addl. Sessions Judge/Fast Track Court No.2, Siddharth Nagar in Special Sessions Trial No.07 of 2008, State vs. Chinku, under Section 20(b)(ii)(c) of the NDPS Act P.S. Dhebarua District Siddharth Nagar whereby the court below had convicted the accused appellant under Section 20(b)(ii)(c) of the NDPS Act and sentenced him to undergo rigorous imprisonment for 12 years with a fine of Rs.1,20,000/-, in default of payment of which the accused appellant has been directed to undergo further three years rigorous imprisonment. 2. The prosecution case, in nutshell, is this that on 17.12.2007 the Incharge of SOG Amrendra Kumar Rai along with police personnel was busy in the search of doubtful criminals. They were present near the Inspection House in Qasba Barhni of District Siddharth Nagar. At that time the Incharge Amrendra Kumar Rai received information from some informer that two persons who belonged to Nepal are coming from Kishan Nagar Nepal with charas in bags and they are to deliver the said charas to a party near Barhni Cinema Hall. On believing this information the police party reached near Kabir Picture Palace in the jeep along with the informer and stood at the back door of the picture hall covering themselves behind something. After some time two persons were spotted coming from the side of station. After having pointed them the informer had slipped from there. As soon as those persons reached the back door of that picture hall they were arrested by the police party at 10.15 a.m. On being asked they told their name as Chinku (accused appellant) and the second one told his name as Mohan Lala. They also told that they had charas in the bag and they had come there to deliver the same to a party belonging to Kanpur. Thereupon they were told that it is their right to be searched before any Gazetted Officer or Magistrate on which they stated that since they have been arrested by them, so they may be searched by them (police). The police party prepared their individual consent letter and thereafter they made search of the accused appellant and co-accused Mohan Lala. On their search three bundles of charas were recovered from the plastic bag of brown colour which he was carrying in his hand. The police party prepared their individual consent letter and thereafter they made search of the accused appellant and co-accused Mohan Lala. On their search three bundles of charas were recovered from the plastic bag of brown colour which he was carrying in his hand. On being weighed, the weight of three bundles was found to be about 2 kg 500 gm. 2-2 chappad (slabs) were found from the two bundles each and one chapad was found from the third bundle. Three samples of 35-35 gm were taken from these three bundles and were separately sewed and sealed in a separate cloth and sample seal thereof was prepared. Three residuary charas packet were also sealed in the same bag (Jhola) and sample seal thereof was prepared. In the same way the charas allegedly recovered from co-accused Mohan Lala was taken and residuary thereof was also sealed. Thereafter the accused persons were arrested. No person of the public became ready to become the witness of this search and seizure. The higher officials were informed as regards the arrest of the accused persons by mobile phone. The recovery memo was prepared on the spot which is Ext.Ka.3. On the basis of that recovery memo FIR (Ext.Ka.12) was lodged in P.S. Dhebarua as Case Crime No.682 and 683/2007. On that basis a case under Section 8/20 of the NDPS Act, 1985 was registered against the accused appellant. An entry as regards the registration of the case was made in the General Diary, carbon copy of which is Ext.Ka.19. 3. The investigation of this case was conducted by S.I. Sri Brijesh Kumar Yadav who prepared the site plan of the spot (Ext.Ka.9) and sent the sample of the said contraband to Forensic Science Laboratory for analysis with the docket (Ext.Ka.10). Forensic Science Laboratory reports are Ext.Ka.15 and Ext.Ka.16. Ext.Ka.15 relates to the accused appellant and Ext.Ka.16 relates to co-accused Mohan Lal. According to the Forensic Science Laboratory report, the sample of the contraband was found to be charas. After completing the investigation the Investigating Officer submitted the charge sheet against the accused appellant and co-accused Mohan Lal under Section 8/20 of the NDPS Act, which are Ext.Ka.13 and Ext.Ka.14. 4. The trial court framed the charges against the both the accused under Section 20(b)(ii)(c) of the NDPS Act. The accused pleaded not guilty to the charge and claimed to be tried. 5. 4. The trial court framed the charges against the both the accused under Section 20(b)(ii)(c) of the NDPS Act. The accused pleaded not guilty to the charge and claimed to be tried. 5. The prosecution in order to prove its case examined five witnesses in all. Out of them PW-1 Amrendra Kumar Rai was the Incharge of SOG and the leader of the arresting police team. He in his examination-in-chief has deposed in the trial court according to the FIR lodged by him the brief of which has already been given hereinabefore. PW-3 Constable Vishwanath Singh is also the witness of fact. He has given almost the same statement as that of witness PW-1.PW-2 is the Head Constable Rosh Nath Ojha who had brought the register regarding the deposition of the contraband deposited in the Malkhana of P.S. Dhebarua. PW-4 is Constable Ghanshyam Chaturvedi who had taken the samples from the Malkhana of the aforesaid Police Station to Forensic Science Laboratory Lucknow. PW-5 S.I. Brijesh Kumar is the Investigating Officer of this case. The relevant portion of the statement of all the witnesses which they had given in cross-examination shall be referred to hereinafter while appreciating the evidence. 6. The accused appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution case and has further stated that the police personnel had got his thumb impression on a blank paper and thus denied the fact of preparation of recovery memo before him; that wrong charge sheet has been filed against him and that the prosecution witnesses had falsely deposed against him. He has also stated that the police had asked him to get some big dealer of the contraband arrested. When the accused appellant refused to do so, he has been falsely implicated in this case by showing false recovery from him. 7. The defence side had filed the copy of the newspaper 'Dainik Jagran' dated 19.11.2007 and had examined DW-1 Santosh and DW-2 Smt. Suneeta in their defence in the trial court. 8. The learned trial court after perusing and analyzing the evidence on record and hearing the counsel for both the parties convicted and sentenced the accused appellant as hereinbefore mentioned in the beginning of the judgment. Hence, this appeal. 9. 8. The learned trial court after perusing and analyzing the evidence on record and hearing the counsel for both the parties convicted and sentenced the accused appellant as hereinbefore mentioned in the beginning of the judgment. Hence, this appeal. 9. I have heard Sri N.D. Rai Advocate with Sri Praveen Kumar Srivastava learned counsel for the appellant, Sri Ajeet Kumar Singh learned AGA for the State and perused the record. 10. Learned counsel for the appellant has submitted that in this case the provisions of Section 50 of the NDPS Act have not been complied with. So the impugned judgment and order cannot be sustained. 11. On the other hand, learned AGA for the State has submitted that Section 50 of the Act is not attracted because the said contraband was recovered from a Jhola (bag) and in case of search of bag, conveyance etc. the provisions of Section 50 are not applicable in this case. 12. I find force in the contention of the learned AGA. On page 21 of the paper book it has clearly come in the statement of PW-1 the Arresting Officer Sri Amrendra Kumar Rai that he had not searched the person of the accused appellant. He had searched the bag only. Therefore, the provisions of Section 50 of the NDPS Act are not applicable in this case. In this regard the ruling of the Apex Court State by CBI Vs. Dilbagh (2006) 1 SCC (Cri) 304 may be referred to in which it has been held that in case of search of bag Section 50 of the NDPS Act is not applicable. 13. Learned counsel for the accused appellant has submitted that the prosecution has failed to establish beyond doubt because the sample which was analyzed by the Chemical Examiner, was a sample taken from the substance allegedly recovered from the possession of the accused appellant because there is material difference between the weight of the samples prepared on the spot and the samples received in the laboratory as is evidence from Chemical Examiner report. So the impugned judgment and order of the trial court is not liable to be sustained. In support of his contention learned counsel for the accused appellant has cited the decision of the Hon'ble Supreme Court rendered in the case of Rajesh Jagdamba Avasthi Vs. State of Goa, reported in 2005 (51) ACC 315. 14. So the impugned judgment and order of the trial court is not liable to be sustained. In support of his contention learned counsel for the accused appellant has cited the decision of the Hon'ble Supreme Court rendered in the case of Rajesh Jagdamba Avasthi Vs. State of Goa, reported in 2005 (51) ACC 315. 14. On the other hand, learned AGA for the State has submitted that the difference of the weight of the samples as is mentioned in the Chemical Examiner report and in the seizure memo is of no help to the accused appellant because the accused appellant has not challenged the Chemical Examiner report in the trial court. Had the same been challenged by the accused appellant, in that case proper procedure was to summon Chemical Examiner in that regard. In support of his contention learned counsel for the accused appellant has relied upon the decision of Punjab High Court in the case of The State vs. Sadhu Ram Harbans Lal, reported in AIR 1963 Punjab 142. 15. I agree with the contention of the learned counsel for the accused appellant. The case of the defence as has been suggested by the defence to the witness Ghanshyam Chaturvedi (PW-4) is this that the samples which he had taken to Forensic Science Laboratory Lucknow were not taken by him from Malkhana. So the prosecution was duty bound to prove by link evidence that the samples analyzed by the Forensic Science Laboratory were the samples which were taken from the substance allegedly recovered from the possession of the accused appellant. It is surprising that the said samples which were received in the Forensic Science Laboratory did not bear the seal of the Arresting Officer S.I. Amrendra Kumar Rai or any other police personnel of his team but according to the Chemical Examiner report the sample contained the seal of one B.G. Sonkar who was neither the arresting officer nor any member of the arresting police team nor he is the Investigating Officer and that there is also no case of the prosecution that the samples were taken in the police station in which the alleged contraband and their samples are said to have been kept. The case of the prosecution is this that the sampling and seizure process was done at the place of incident. The case of the prosecution is this that the sampling and seizure process was done at the place of incident. There is nothing on record to show that the samples of the residuary part of the said contraband were also sealed by the Officer Incharge of that police station. 16. In this case there is clear violation of Section 55 of the NDPS Act which says that the seal of the Officer Incharge of the police station concerned has to be put on the samples. There is also nothing on record to suggest that the Officer Incharge of the police station had himself verified that the sample drawn by PW-1 Amrendra Kumar Rai were in fact drawn from the contraband deposited in the police station and that only after such verification he had put his seal thereon because in this case the Incharge of the Police Station concerned has not been examined by the prosecution to verify this aspect of the matter. The purpose of Section 55 of the NDPS Act is to avoid any tampering with the samples or with the residue contraband but in the present case no seal of the officer incharge of the police station has been proved to have been put on the samples or on the residue contraband and even the sample seal was not filed by the prosecution in the court along with the charge sheet or thereafter as no sample seal is found on the record. Thus, the oral evidence of the police witnesses that the substance recovered from the person of the accused appellant was charas is not sufficient to hold that it was charas in the absence of any link evidence. The further circumstance that the weight of the samples and the sample seal allegedly sealed on the spot does not tally with the weight of the sample received in the Forensic Science Laboratory is also against the prosecution. The discrepancy in the weight is not a minor discrepancy nor the same can be said due to the difference of weighing scale or due to some zero error of either of the weighing scales used on the spot and in the laboratory. The discrepancy in the weight is not a minor discrepancy nor the same can be said due to the difference of weighing scale or due to some zero error of either of the weighing scales used on the spot and in the laboratory. According to the prosecution, 35-35 gm samples were taken from the said contraband and three samples from the contraband allegedly recovered from the possession of the accused appellant were prepared on the spot but in the laboratory one sample was found of the weight of 47.5 gm, the another one was found 19.5 gm and the third one was found 30.5 gm. But according to the Forensic Science Laboratory report (Ext.Ka.15), the samples received in the laboratory were found to be of 47.5 gm, 19.5 gm and 30.5 gm. Thus none of the samples was found to be of 35 gm. Thus, the weight of one sample in the laboratory was found to be greater than the weight of sample allegedly prepared on the spot and the rest two were found to be lesser in weight in comparison to the weight of the samples allegedly prepared on the spot. So this discrepancy in the weight of the samples cannot be attributed to the manner of weighing or due to some zero error of the scale. This discrepancy further indicates that the samples which were analyzed in the laboratory were not the samples of the contraband allegedly recovered from the possession of the accused appellant. Thus there is no scientific reliable evidence on record to prove that the said contraband allegedly recovered from the possession of the accused appellant was charas. There is also no clinching and reliable evidence on record that the samples which were analyzed by the Chemical Examiner in the laboratory were the samples of the contraband allegedly recovered from the possession of the accused appellant. Thus this circumstance also renders the case of the prosecution doubtful. The ruling cited by learned AGA for the State is of no help to the prosecution. Here in the instant case the question is not about the nature of the substance allegedly recovered from the possession of the accused appellant but here the question is whether the samples analyzed in the laboratory were taken from the substance allegedly recovered from the possession of the accused appellant. Here in the instant case the question is not about the nature of the substance allegedly recovered from the possession of the accused appellant but here the question is whether the samples analyzed in the laboratory were taken from the substance allegedly recovered from the possession of the accused appellant. So there was no need to examine the report of the Chemical Examiner in this case. 17. There is one other aspect of the matter and that is the non-examination of any public witness in support of the prosecution case. PW-5 S.I. Brijesh Kumar, who is the Investigating Officer of this case, has stated in his cross-examination that "MUJHE JANTA KA KOI VYAKTI AISA NAHI MILA JISNE GIRAFTARI VA BARAMADGI KI TASDEEK KIYA HO". It is true that the conviction may be based upon the bare testimony of the police personnel but the test is this that whether in the facts and circumstances of the case his testimony inspires confidence. The incident of this case is said to have taken place in busy market of Barhni by the side of one tea stall and several persons are said to have been sitting at that very tea stall at the time of the occurrence in question and several persons are said to have passed by that place. The searching team neither tried to make the owner of the tea stall to be the witness in this case. Even his name has not been told by the police personnel including the Investigating Officer who have been examined in the court. In the recovery memo as well as in the statement of any witnesses of fact (PW-1 and PW-3) did not disclose the name of those persons of public who refused to witness the incident in question. Since the incident in question allegedly took place in the broad day light and in the busy market and the prosecution witnesses are not telling the name of the owner of the tea stall or any other passersby who were asked by them to become the witness, so it does not appear safe to sustain the conviction of the accused appellant merely on the basis of two police personnel (PW-1 and PW-2) as they belong to the same department. So regard being had to all the facts and circumstances of the matter the testimony of the said police witnesses is treated to be the testimony of a single witness. It is well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, is necessary to convict an accused which is lacking in this case. 18. For the foregoing reasons and discussion, I come to this conclusion that the prosecution has failed to prove its case against the accused appellant beyond reasonable doubt and the court below has committed error in convicting and sentencing the accused appellant. So the impugned judgment and order is not warranted by law and facts on record and the same is liable to be set aside. 19. In the result, the appeal succeeds and is accordingly allowed. The impugned judgment and order of the trial court dated 17.6.2008 as regards the accused appellant is hereby set aside. The accused appellant Chinku is not found guilty of the charge framed against him and he is acquitted of the charge levelled against him. So he be set at liberty forthwith if he is not wanted in any other case. 20. Office is directed to communicate this order to the lower court for compliance at the earliest and to return the lower court record along with the copy of this judgment. 21. The case property relating to this case shall be disposed of as per rules. 22. Certified copy of this judgment be supplied to the counsel for the accused appellant without any delay.