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Allahabad High Court · body

2017 DIGILAW 2032 (ALL)

Rammer (Jail Appeal) v. State of Uttar Pradesh

2017-08-30

SATYA NARAIN AGNIHOTRI

body2017
JUDGMENT : Satya Narain Agnihotri, J. Instant appeal has been directed against the impugned judgment and order dated 27.01.2015 passed by learned Additional Sessions Judge, Court No. 2, Barabanki whereby learned Additional Sessions Judge hold guilty to appellant/accused Ram Mer under section 8/21-B, Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced 5 years rigorous imprisonment and fine of Rs. 50,000/-, in default of payment of fine, he shall further undergo 1 year simple imprisonment. 2. The facts giving rise to this appeal may be summarised as under:- On 29.01.2014 complainant Sub Inspector R.K. Choudhary received an information from an informer at Harakh trijunction that two persons are standing near the gate of Baba Baijnath Degree College. Informer further informs that one person gave Morphine to another person. Relying upon the information, complainant Sub Inspector with other police officials reached near the place of occurrence where informer after indicating towards suspected persons escaped from the scene. 3. Complainant with other police officials tried to reach near the gate of the college. Seeing police officials appellant/accused tried to flee from the scene of occurrence but the police officials nabbed appellant/accused while another suspected person fled away. 4. It is further pleaded that after nabbing the appellant/accused, upon enquiry appellant communicated that he has Morphine about half kg with him. Receiving and relying upon this information passed by appellant/accused, complainant Sub Inspector informed to the appellant about his right that "he has right to be searched in presence of the Magistrate or Gazetted officer." Appellant/accused waved his right and gave his consent to be searched by the present police party. Thereupon, a consent letter was prepared which was signed by the complainant Sub Inspector and appellant/accused. After the compliance of mandatory provision of Section 50 of NDPS Act, the search of the appellant was conducted and 500 gms Morphine was recovered from the pocket of jacket which was wore by the appellant/accused. After recovery of the Morphine accused was taken into formal custody of the police. Further, stated that the recovered Morphine was sealed and the memo of recovery and arrest of the accused was prepared and a copy of the memo was served to the appellant/accused. Thereafter the appellant/accused and recovered Morphine was submitted to the police station Jaidpur, District Barabanki. 5. Further, stated that the recovered Morphine was sealed and the memo of recovery and arrest of the accused was prepared and a copy of the memo was served to the appellant/accused. Thereafter the appellant/accused and recovered Morphine was submitted to the police station Jaidpur, District Barabanki. 5. To prove the guilt of the appellant/accused, prosecution examined PW-1 complainant sub inspector Sri Raj Kumar Choudhary and PW-2 Sri Vijay Singh Constable. Appellant/accused admitted the genuineness of the documents of the prosecution namely site plan Exhibit Ka-4, Docket Exhibit Ka-5, General Diary No. 29 dated 19.02.2014 Exhibit Ka-6, chemical examination report of Forensic Science Laboratory Exhibit Ka-7, G.D. No.6 time 10.30 dated 27.06.2014 Exhibit Ka-8, G.D. 29 Time 18.00 dated 29.06.2014 Exhibit Ka-9, photocopy of G.D. not readable Exhibit Ka-10, Chik FIR Exhibit Ka-11 and Charge sheet Exhibit Ka-12. 6. Appellant/accused in his statement under section 313 Cr.P.C., 1973 admitted all the allegations levelled against him by the prosecution and stated that there is none behind him to defend him. It was his first offence that is why he be pardoned. 7. Heard learned Amicus Curiea Sri Amitabh Shukla and learned A.G.A and gone through the entire record of the learned Trial Judge. 8. According to the prosecution, PW-1 Sri Raj Kumar Choudhary is the complainant, who receiving information from an informer, visited the place of occurrence near Baba Baijnath Degree College, P.S. Jaidpur, District Barabanki, where he saw two suspected persons standing near the gate of degree college, appellant/accused and other suspected person realizing the danger tried to flee with another suspect, but appellant/accused was nabbed by police party. Upon enquiry appellant/accused informed to complainant PW-1 and the police party that he has half kg Morphine with him. He has further stated that upon receiving information regarding Morphine from the appellant/accused, he informed to appellant/accused about his right that he would be searched in presence of Magistrate or Gazetted officer, if he so desires. PW-1 further stated on oath that appellant/accused waved his right to be searched in presence of Magistrate or Gazetted officer, and he gave his consent to be searched by the present police party. After taking oral consent of the appellant/accused, consent letter Exhibit Ka-1 was prepared which was signed by complainant PW-1 along with appellant/accused. PW-1 further stated on oath that appellant/accused waved his right to be searched in presence of Magistrate or Gazetted officer, and he gave his consent to be searched by the present police party. After taking oral consent of the appellant/accused, consent letter Exhibit Ka-1 was prepared which was signed by complainant PW-1 along with appellant/accused. Thereafter, the personal search of the appellant/accused was carried out and half kg Morphine was recovered from the pocket of the jacket which was worn by the appellant/accused. 9. PW-1 complainant further narrated on oath that after recovery of Morphine from the appellant/accused, a composite memo of recovery and arrest Exhibit Ka-2 was scribed which was signed by complainant along with appellant/accused and the police officials who were the member of the police party. PW-1 further narrated that the information regarding the arrest of the appellant/accused was sent to the close relative of appellant/accused through telephone number which is mentioned in Exhibit Ka-3. He has further narrated that after information of arrest to the person whose mobile number was informed by the appellant/accused, that person made a rerun call to the complainant. Witness has further narrated that the sample of seal was prepared. 10. PW-2 who had accompanied PW-1 and was the member of police party supported on oath the statement of PW-1 complainant and there is no need to repeat the narration of PW-1. 11. Appellant/accused admitted genuineness of the rest documents of prosecution that is why prosecution did not examine other witnesses such as scriber of the Chic F.I.R, GD and the I.O. 12. The PW-1 and 2 was subjected to cross examination by the learned counsel for the appellant/accused but nothing could be extracted in favour of the appellant/accused. The statement of PW-1 and 2 remain intact that is why I do not find any good and sufficient reason to discard the evidence of PW-1 and 2. 13. More over the appellant/accused admitted the allegations alleged by the prosecution against him in his statement under Section 313 Cr.P.C., 1973 14. Learned Amicus Curiea submitted that the provisions of Section 50 of NDPS Act have not been complied with by the prosecution and the appellant/accused is entitled to be acquitted on this score only. Learned AGA opposed and submitted that the mandate of Section 50 of NDPS Act has been complied with strictly. 15. Learned Amicus Curiea submitted that the provisions of Section 50 of NDPS Act have not been complied with by the prosecution and the appellant/accused is entitled to be acquitted on this score only. Learned AGA opposed and submitted that the mandate of Section 50 of NDPS Act has been complied with strictly. 15. In view of the rival submissions of the learned counsels, I visited the evidence available on record and cogitated on the matter and find that the submission of learned Amicus Curiea is nothing but a futile exercise. PW-1 complainant and PW-2 the witnesses of fact unequivocal and unerringly proved on oath that upon receiving information from the appellant/accused, that he has in his possession half kg Morphine, appellant/accused was informed about his right under Section 50 of NDPS Act that he has right to be searched in presence of Magistrate or a Gazetted officer, if he so desires. Since the appellant/accused waved his right and gave his consent to be searched by the complainant and police party, a letter of consent was prepared which was signed by the complainant and appellant/accused which is Exhibit Ka-1 is on record. I seems no illegality or irregularity in the process followed by complainant. Thus, the compliance of Section 50 of NDPS Act was done by the prosecution according to law. 16. Learned Amicus Curiea further submits that the provisions of Section 52 and 57 of NDPS Act has not been complied with. 17. According to Section 52 of the NDPS Act the grounds or reasons of arrest should be informed to the arrested person and this fact shall also be notified to the superior officer. PW-1 and 2 in their statement on oath has narrated that after arrest of the appellant/accused, a composite memo of recovery and arrest Exhibit Ka-2 was prepared and the copy of the same was served to appellant. Thus the appellant was informed regarding the reason of his arrest. PW-1 and 2 further narrated on oath that the recovery of Morphine and arrest of appellant was informed to the superior officer on telephone and the accused was produced before the Court having jurisdiction of the area. Thus, the requirement of Section 52 of the NDPS has been complied with. PW-1 and 2 further narrated on oath that the recovery of Morphine and arrest of appellant was informed to the superior officer on telephone and the accused was produced before the Court having jurisdiction of the area. Thus, the requirement of Section 52 of the NDPS has been complied with. As far as the requirement of Section 57 is concerned, PW-1 complainant narrated on oath that he has informed regarding the arrest of accused through telephone to his superior, thus Section 57 of the NDPS Act has already been complied with. 18. In the last, I have revisited the statement of PW-1 and 2 and the relevant documents of the prosecution and find that there is nothing on record which compelled to the Court to discard the evidence of PW-1 and 2. Appellant/accused himself admitted all allegations alleged against him by the prosecution in his statement recorded under section 313 Criminal Procedure Code, 1973. 19. In the circumstances, facts and discussions mentioned above, I do not find any good reason to interfere in the judgment and order of the learned Trial Judge. Thus the judgment and order passed by the Trial Judge is according to law and passed after due consideration of the facts, law and circumstances of the case. Hence, the judgment and order of learned Trial Judge is hereby affirmed. Appeal has no merit, hence dismissed. 20. Let this judgment be notified to the learned Trial Judge for compliance who shall report within one and half month regarding the compliance of the judgment. 21. The record of the Trial Judge be returned forthwith.