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2018 DIGILAW 826 (ALL)

WARIS ALI v. STATE OF U. P.

2018-04-05

IFAQAT ALI KHAN

body2018
JUDGMENT : Hon'ble Ifaqat Ali Khan, J. 1. This present appeal is preferred by the appellant Waris Ali against the judgment and order dated 11.03.1998 passed by Additional Session Judge, Maharajganj in Session Trial No. 34 of 1996 under section 8/21 N.D.P.S. Act, Police Station- Kolhuvi, District-Maharajganj, convicting the appellant under section 8/21 N.D.P.S. Act and sentencing him for the rigorous imprisonment for 10 years with the fine of Rs. 1,00,000/- and it is also provided that in default of payment of fine he will undergo the Additional imprisonment for 3 years. 2. Facts giving rise to this appeal are that as per prosecution on 27.07.1996 when S.O., Sangam Mishra, Sub-inspector Tahsildar Singh, police constable Rambadan Yadav and constable Anil Kumar Rai were present on the Kohulvi Tiraha for the checking of the vehicles and suspected persons then they received the information for informer that a person is coming from Nepal carrying charas in plastic bag, believing on this information police party started waiting for that person, at that time one person having a bag in his hand came from the side of Lotan Tiraha. On the pointing of informer police personnel's try to check him then that person turned back and try to run away but the police personnel's apprehended him at 8:20pm and when his name and addressed was asked then he told that he is Waris Ali son of Kulai resident of Belhiya, police out post Belhiya, police station-Bhairwa, District-Rupandehi Nepal. On being asked by police Waris Ali told that he purchase charas from Nepal and was going to sell it at Gorakhpur. On it the police personnel's told him that his search will be carried out before any Magistrate then he told that you are also Magistrate for me then the search was carried out as per rules and charas was recovered from the plastic bag, which Waris Ali was carrying. Charas was weighed-in on the spot and it was found 1kg 700gm Nepali Charas in weight. Accused was taken into custody after telling him the reason, sample was taken out from the recovered charas, sample and rest charas was sealed seperately. Recovery memo was prepared in the light of torch. Public persons gathered on the spot but no one become ready to become the witness. 3. Accused was taken into custody after telling him the reason, sample was taken out from the recovered charas, sample and rest charas was sealed seperately. Recovery memo was prepared in the light of torch. Public persons gathered on the spot but no one become ready to become the witness. 3. On the basis of this recovery memo FIR was lodged at the police station and the case was registered and its entry was made in the G.D., sample was sent to the forensic lab for testing. As per report of the forensic lab recovered substance was found charas. Investigating Officer prepared the site plan and recorded the statement of the witnesses and after concluding the investigation he submitted the charge-sheet. 4. Charge under section 8/21 N.D.P.S., Act was framed against accused-appellant which he denied and demanded the trial. 5. Prosecution examined the 6 witnesses to prove his case PW1 constable Anil Kumar, PW2 Sub-inspector Tahsildar Singh, PW3 Sub-inspector Sangam Mishra, PW4 Sub-inspector Liladhar Ram, PW5 constable Bhikhari Lal and PW6 constable Vipin Bihari Singh. 6. PW1 constable Anil Kumar, PW2 Tahsildar Singh, PW3 Sub-inspector Sangam Mishra and PW4 Sub-inspector Liladhar are the witnesses of the fact. PW3 Sangam Mishra is also the complainant of this case, PW4 Liladhar Ram is the investigating officer, PW5 constable Bhikhari Lal is the scribed and who recorded the FIR and the PW6 Vipin Bihari Singh also a formal witness who proved the G.D., of registering the case. 7. Accused-appellant in his statement under section 313 denied the prosecution case and submitted that he is falsely implicated in this case. 8. Accused-appellant examined DW1 Nasib Ali in his defence. 9. After hearing the counsels for the parties, and on the basis of the evidence available on the record, lower Court convicted accused-appellant Waris Ali under section 8/21 N.D.P.S., Act and sentencing him with the rigorous imprisonment of 10 years with the fine of Rs. 10,00,000/- and it was also provided that in default of payment of fine he will undergo the Additional imprisonment for 3 years. 10. On being aggrieved by judgment and order appellant has preferred the appeal on the ground that the impugned judgment and order dated 11.03.1998 is bad in the eye of law and the provisions of N.D.P.S., Act are not complied with and the sentence awarded is too severe. 10. On being aggrieved by judgment and order appellant has preferred the appeal on the ground that the impugned judgment and order dated 11.03.1998 is bad in the eye of law and the provisions of N.D.P.S., Act are not complied with and the sentence awarded is too severe. Hence, the judgment and order dated 11.03.1998 deserves to be set aside. 11. Heard Shri Om Prakash, learned counsel for the appellant and learned A.G.A., Vijay Bahadur Yadav assisted by brief holders Shri Rajeev Kumar Rai and Avaneesh Shukla and perused the record. 12. Learned counsel for the appellant argued that in this case the police party got the prior information from the informer about the accused even then the police party has not complied with the provisions of Section 50(1) of the N.D.P.S. Act. Accused-appellant must be informed by police party about his right that it is his right to get himself searched out before any Gazetted Officer/Magistrate. Appellant placed the reliance on the pronouncement of Supreme Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 , Vijay Singh Chandubha Jadeja vs. State of Gujarat, (2011) 1 SCC 609 and K. Mohan vs. State of Kerala 1999 LawSuit (SC) 1178. But I do not agree with this argument of learned counsel for the appellant because the compliance of section 50(1) is required only when the personal search of the suspected person is to be carried out. In this present case the charas is recovered from the plastic bag which the accused-appellant was having in his hand in State of Punjab 2011 (CrLJ) 1738 (SC) and State of Punjab vs. Baldev Singh (1999) 6 SCC 172 Hon'ble Supreme Court has held that the search of a person u/s 50 of the N.D.P.S., Act does not include search and recovery from bag, briefcase and container etc. Section 50 applies where the personal search of a person is involved. 13. Learned counsel for the appellant advanced, the second argument that the information regarding arrest of the accused and seizure is not send to the superior officer thus the provisions of Section 57 of N.D.P.S., Act is not complied with. Section 50 applies where the personal search of a person is involved. 13. Learned counsel for the appellant advanced, the second argument that the information regarding arrest of the accused and seizure is not send to the superior officer thus the provisions of Section 57 of N.D.P.S., Act is not complied with. In my opinion the appellant is not going to be benefited by this argument of the learned counsel for the appellant because the compliance of Section 57 N.D.P.S., Act is not mandatory that the Culcatta High Court in T. Pal Kuki vs. The State of West Bangal 1993 (3) Criminal Cases 660 has held that the provisions of section 55 and 57 are merely directing in nature non-compliance of section 55 and 57 N.D.P.S., Act does not vitiate the trial of the accused. 14. Learned counsel for the appellant submitted that the police party had the prior information of the accused carrying charas and in the recovery memo itself it is mentioned that the public persons gathered on the spot at the time of occurrence but even then no public person is made witness in this case. In my opinion this argument of the learned counsel for the appellant does not effect the case of the prosecution adversely because in the recovery memo it is mentioned that the public persons gathered on the spot, but they did not become ready to become the witness of the occurrence. In my opinion this argument of the learned counsel for the appellant does not effect the case of the prosecution adversely because in the recovery memo it is mentioned that the public persons gathered on the spot, but they did not become ready to become the witness of the occurrence. It shows that the proper effort was made by the police party to procured the public witnesses if in spite of the effort of the police party no public persons becomes the witness of the occurrence then it will not affect the prosecution case adversely as in Hon'ble Allahabad High Court in Ekram Waris vs. State of U.P., 2005 All LJ 1799 has held that "the evidence of such departmental or police witnesses has been doubted by the Courts only in the cases when in one or the given situation/circumstance, their conduct is found to be unnatural or otherwise suspicious while making recovery and doing the formalities, as required under law." and in Hon'ble Supreme Court in Karamjit Singh v. State (Delhi Admn.), (2003) 5 SCC 291 has held that "The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds." and in Hon'ble Supreme Court in Akmal Ahmad v. State of Delhi, (1999) 3 SCC 337 has held that "It is now well settled that the evidence of search or seizure made by the police will not become vitiated solely for the reason that the evidence is not supported by any independent witness." and in Hon'ble Supreme Court in Jarnail Singh v. State of Punjab, (2011) 3 SCC 521 has held that "Merely because the prosecution has not examined any independent witness, would not necessarily lead to the conclusion that the appellant has been falsely implicated and in Hon'ble Supreme Court in Ajmer Singh v. State of Haryana, (2010) 3 SCC 746 has held that "The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence." and in Hon'ble Allahabad High Court in Rati Ram v. State of U.P., 2013 SCC OnLine All 13007 has held that "The testimony of police personnel cannot be rejected merely because they belong to Police Department. Their testimony should be treated in the same manner as testimony of any other witness. There is no principle of law that without corroboration by independent witnesses, the testimony of a police personnel cannot be relied on. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good reasons. " and in Hon'ble Supreme Court in C. Ronald v. UT, Andaman & Nicobar Islands, (2011) 12 SCC 428 has held that "There is no principle of law that a statement made in court by a police personnel has to be disbelieved. It may or may not be believed. It is not that all policemen will tell lies. There are good and bad people in all walks of life. There are good and bad policemen as well. It may or may not be believed. It is not that all policemen will tell lies. There are good and bad people in all walks of life. There are good and bad policemen as well. We cannot assume that every statement of a policeman is necessarily false." and in Hon'ble Supreme Court in Abdul Masjid Abdul Hak Ansari v. State Of Gujarat, (2003) 10 SCC 198 has held that "where prosecution has proved beyond reasonable doubt that the charas was seized from the person of the appellant and the same was properly sent to the Forensic Science Laboratory for the purpose of analysis and the same was found to be a contraband article, sale of which is prohibited under the provision of the Act and the appellant was found possessing the said quantity of charas for the purpose of sale then conviction can be based on evidence of police witnesses." and in Hon'ble Supreme Court in Girja Prasad v. State Of Madhya Pradesh (2007) 7 SCC 625 has held that "The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor." 15. Learned counsel for the appellant argued that in this case it is not proved that from where the balance and weight was brought to weighed-in the alleged recovered charas, it creates the prosecution case doubtful. On the perusal of the file it reveals that in the recovery memo simply it is mentioned that the weight and balance was brought on the spot and recovered charas was weighed-in. It is worth mentioned that in the recovery memo it is not mentioned that the balance and weight was fetched by whom and from where. PW1 constable Anil Kumar in his statement has stated that the constable Ram Badan brought the balance from a shopkeeper but he does not know the name of that shopkeeper but it is again worth mentioned that neither the shopkeeper nor the constable Ram Badan is examined by the prosecution in this case to prove that balance and weight was brought on the spot to weighing the recovered charas from the accused. Thus, it is not proved in this case that the balance and weight was brought on the spot to weigh-in the recovered charas from the accused. Thus, it is not proved in this case that the balance and weight was brought on the spot to weigh-in the recovered charas from the accused. It creates the doubt on the prosecution case. 16. Learned counsel for the appellant advance his next argument that in the recovery memo it is mentioned that the sample was taken out on the spot but no where the weight of the sample is mentioned and the weight of the sample is also not mentioned in the FSL report. It creates the doubt on the prosecution case. I agree with this argument of the learned counsel for the appellant that non-mentioning the weight of the sample in recovery memo and in the FSL report creates the doubt on the prosecution case. 17. Learned counsel for the appellant submitted that in this case investigation is conducted by the subordinate officer of the complainant. Thus, it cannot be said that the investigation is done fairly. Perusal of the record shows that S.O. Sangam Lal Mishra is the complainant of this case and the investigation is conducted by Sub-inspector Liladhar Ram. PW6 has admitted that the Sangam Mishra was the S.O., and he made the entry in the G.D., on the dictation of Shri Sangam Mishra. PW3 Sangam Mishra has admitted that at the time of occurrence he was the S.O., Police Station-Kolhuvi and PW4 S.I., Liladhar Ram who is the Investigating Officer has admitted that at the time of occurrence he was posted as S.I., at the police station-Kolhuvi, meaning thereby it is crystal clear from the evidence on the record that the investigation was conducted by the subordinate of the complainant. It is also worth mentioned that in this case charge-sheet is submitted on 10.09.1996 and the sample is also send for testing to forensic lab on 10.09.1996 and the forensic lab report was prepared on 23.10.1996 meaning thereby the charge-sheet is submitted before receiving the report of forensic lab, it is very important that the Investigating Officer PW4 Liladhar Ram in his statement has admitted that during the investigation he never saw the case property nor he tried to see it, nor he was informed about it any police personnel's who were present at the time of recovery whatever was said to him by S.O.(complainant) he admitted it. This fact makes it very much clear that the investigation conducted by Investigating Officer in this matter is not fair. 18. Learned counsel for the appellant submitted that in the recovery memo and in the whole case, G.D., number of the police parties departure from police station is not mentioned. Perusal of the record shows that neither in the recovery memo nor in the whole case, it is mentioned that what was the G.D., number of the departure of the police party from the police station, it creates doubt on the prosecution case. 19. Learned counsel for the appellant submitted that there are major contradiction between the statements of PW1 and PW3 regarding the case property produced in the Court. PW1 constable Anil Kumar in his statement has stated that the case property which is produced before him in the Court bears the seal of forensic lab, Lucknow, and it is not that seal with which the case property was sealed on the spot. He also admitted that case property produced in the Court before him is sealed in the rexine bag. In contrast to it PW3 in his statement has stated that the charas was recovered from accused in the plastic bag which the appellant was carrying and in his statement also he has stated that case property produced before him in the Court, bears his seal. This contradiction is major contradiction and creates the whole prosecution case doubtful. 20. This fact is also very relevant that in this case link evidence is not produced that who took the alleged recovered charas from malkhana to the forensic lab. 21. Thus, the failure of the prosecution to established from where the balance and weight was brought, failure to produced the linking evidence that who took the sample from Malkhana to forensic lab, non-mentioning the weight of the sample. Investigation being unfair on the ground being conducted by the subordinate of Investigating Officer, Non-mentioning of the G.D., number of the departure of the police party, major contradictions regarding the case property between the statement of PW1 Anil Kumar and PW3 Sangam Mishra creates the whole prosecution story doubtful. 22. Thus, the prosecution has utterly failed to prove its case beyond doubt and the accused-appellant was entitled for the benefited doubt. 23. On the basis of above of discussion the Criminal Appeal No. 507 of 1998 deserves to be allowed. 24. 22. Thus, the prosecution has utterly failed to prove its case beyond doubt and the accused-appellant was entitled for the benefited doubt. 23. On the basis of above of discussion the Criminal Appeal No. 507 of 1998 deserves to be allowed. 24. Appeal is allowed. 25. Judgement and order dated 11.03.1998 passed by Additional Session Judge, Maharajganj, in Special Case No. 34 of 1996 under section 239 of 1996, under section 8/21 N.D.P.S., Act, Police Station-Kolhi, District- Maharajganj is set aside. 26. Appellant Waris Ali is acquitted from the charge under section 8/21 N.D.P.S., Act, in Special Case No.34 of 1996 under section 239 of 1996, Police Station-Kolhuvi, District- Maharajganj. Appellant is on bail he need not to surrender his personal bond and surely bond are cancelled and sureties are discharged. 27. The case property be destroyed after the expiry of period of appeal, if no appeal is preferred or if the law permits otherwise. 28. Let the lower Court record be send back forthwith along with a copy of the judgment of this appeal for compliance.