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2018 DIGILAW 948 (RAJ)

JUGAL KISHORE v. STATE OF U. P.

2018-04-06

IFAQAT ALI KHAN

body2018
JUDGMENT : Ifaqat Ali Khan, J. This Criminal Appeal No. 229 of 1991 (Jugal Kishore and Others Vs. State of U.P.) is filed by the appellants Jugal Kishore and Krishna Kumar Awasthi against the judgment and order dated 08.02.1991 passed by 2nd Additional Sessions Judge Kanpur Nagar in Sessions Trial No. 73 of 1989 (State Vs. Jugal Kishore) under section 20 of NDPS Act, Govind Nagar District Kanpur Nagar and Sessions Trial No. 406 of 1989 (State Vs. Krishna Kumar Awasthi) under section 20 NDPS Act, Police Station Govind Nagar, District Kanpur Nagar. 2. In nutshell the prosecution case is that on 13.07.1988 at 9.30 P.M. S.I. Prem Singh Raikwar was on Patrolling duty along with other Police personnel and when the police party reached in front of main gate of Nirankari Bhawan then they saw three persons from the distance of 25 steps coming on the road and when the police party reached near them then they turned back and started running. On doubt police personnel apprehended them at 9.30 P.M. on road and when names of the arrested persons were asked and one person told his name Om Prakash Gupta, second person told his name Krishna Kumar Awasthi and third person told his name Jugal Kishore and when their search were carried out as per rules by the police personnel then 500 Gram Charas was recovered from the Pant of Krishna Kumar Awasthi which was wrapped in polythin white in colour and from the Pant of Jugal Kishore 500 Gram Charas was recovered which wrapped in polythin white in colour and 500 Gram Charas was recovered from the Pant of Om Prakash Gupta. The recovered Charas was sealed and accused were arrested, recovery memo was prepared. On the basis of this recovery memo FIR was lodged at Police Station Govind Nagar, District Kanpur Nagar and case was registered matter was investigated. Recovered Charas was sent for testing to the Forensic Science Laboratory. Contraband substance recovered from the both appellants Krishna Kumar Awasthi and Jugal Kishore were found Charas in Forensic Science Laboratory. I.O. submitted the charge sheet . 3. Charge on Jugal Kishore and Kirshna Kumar Awashti were framed under section 20 (b) (ii) NDPS Act which was read over to the accused which they denied and demanded trial. 4. Prosecution examined two witnesses PW-1 S.I. Prem Singh Raikwar and PW-2 Shiv Kumar Mishra to prove the charge. I.O. submitted the charge sheet . 3. Charge on Jugal Kishore and Kirshna Kumar Awashti were framed under section 20 (b) (ii) NDPS Act which was read over to the accused which they denied and demanded trial. 4. Prosecution examined two witnesses PW-1 S.I. Prem Singh Raikwar and PW-2 Shiv Kumar Mishra to prove the charge. 5. Statement of accused under section 313 Cr.P.C was recorded they are stated they are falsely implicated in this case. Accused Jagual Kishore stated that he does the work of polishing of furniture. Police personnel asked him to polish their furniture which he denied, therefore, he is falsely implicated in this case. Karishna Kumar Awasthi submitted that he works on the shop of opium police personnel used to demanded money from him because he denied therefore, he is falsely implicated in this case. Both the accused/appellants denied to adduce the evidence in their defence. 6. Learned Trial Court after hearing the argument of learned counsel for the parties and perusal of record convicted the accused/appellants Jugal Kishore and Krishna Kumar Awasthi under section 20 (b) (ii) NDPS Act and punished them with the rigorous imprisonment of 10 years with the fine of Rs. 1 lac and it is also provided that in default of payment of fine they will undergo the Additional imprisonment for one year. 7. Being aggrieved by this judgment and order dated 08.02.1991 they preferred this appeal on this ground that impugned judgment is passed without proper appreciation of evidence available on record, impugned judgment is bad in the eyes of law. Conviction awarded to the appellants are too severe and the fine awarded to the appellants are too excessive. 8. Learned Amicus Curiae submitted that in this case provision of section 42 NDPS Act are not complied with by the police party. In my opinion the provision of section 42 NDPS Act are not attracted in this case because section 42 NDPS act applies where search of any building, conveyance or enclosed place is carried out by the police. In this present case the accused/appellants are apprehended all of sudden on the open road. Hon'ble Supreme Court in Sayar Puri Vs. State of Rajasthan, (1998) CriLJ 4589, has held that "when the accused was found setting on the public road procedure under section 42 NDPS Act is not required to be followed." 9. In this present case the accused/appellants are apprehended all of sudden on the open road. Hon'ble Supreme Court in Sayar Puri Vs. State of Rajasthan, (1998) CriLJ 4589, has held that "when the accused was found setting on the public road procedure under section 42 NDPS Act is not required to be followed." 9. Learned Amicus Curiae advanced her second argument that in this case there is no public witness of arrest and recovery. In my opinion this argument of learned Amicus Curiae is not going to benefit the accused/appellants because in the recovery memo itself it is mentioned that due to all of sudden arrest and recovery the public witness could not be procured, in such circumstance it will not affect the prosecution case adversely on this ground because there is no public witness in Hon'ble Allahabad High Court in Ekram Waris Vs. State of U.P., 2005 AllLJ 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 Vs. 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 Vs. 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 Vs. 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 Vs. 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 Vs. 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., 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 Vs. 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. We cannot assume that every statement of a policeman is necessarily false." and in Hon'ble Supreme Court in Abdul Masjid Abdul Hak Ansari Vs. 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 Vs. 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 therefore". 10. Learned Amicus Curiae defence her next argument that there is no signature of accused on the recovery memo and S.I. Prem Singh Raikwar has admitted in his statement that signature of the accused/appellants were not obtained on the recovery memo. In my opinion not obtaining the signature of accused on the recovery memo creates doubt on the prosecution case. 11. In this case in recovery memo it is mentioned that about 500 Gram Charas was recovered from Krishna Kumar Awasthi and 500 Gram Charas was recovered from Jugal Kishore, but alleged recovered Charas was not weighed by the police party by any balance or scale and in Forensic Science Laboratory report also it is not mentioned that what was the quantity of contraband substance sent to the Forensic Science Laboratory. In my opinion this fact also creates doubt on the prosecution case. 12. In my opinion this fact also creates doubt on the prosecution case. 12. In this case it is very important that as per prosecution case 4 police personnel S.I. Prem Singh Raikwar, Head Constable Mukhtar Haider, Constable Jaswant Singh and Constable Bhaiya Lal apprehended the accused/appellants but only PW-1 S.I. Prem Singh Raikwar was examined by the prosecution as the eye witness of the occurrence, non production of other witnesses is fatal for the prosecution. Prosecution must have produced in the list two witnesses of fact to prove his case. On the cross examination of two witnesses of fact learned counsel for the accused/appellants could have had the opportunity to challenge their reliability by showing the contradictions in their statements which the prosecution did not provide to defence counsel. The examination of single witness of fact PW-1 S.I. Prem Singh Raikwar is insufficient to prove the prosecution case specially where the accused/appellants have leveled the allegations of their false implication in this case due to unlawful act of police personnel. In their statement under section 313 Cr.P.C. Jugal Kishore has stated that police personnel asked to polish their furniture which he denied due to this enmity he is falsely implicated in this case. Krishna Kumar Raikwar has stated that he works on the shop of opium police personnel demanded the money from him he could not pay, hence, he is falsely implicated in this case. Thus the circumstance and nature of this case is as such that signal witness of prosecution PW-1 S.I. Prem Singh Raikwar who is police personnel is not sufficient to prove this case. Thus, on the basis of examination of only one police witness by the prosecution and not obtaining the signature of accused/appellants on the recovery memo. Non measuring of weight of contraband substance recovered on the spot by scale or balance establishes that the prosecution has failed to prove the offence under section 20 (b) (ii) NDPS Act against accused/appellants Krishna Kumar Awasthi and Jugal Kishore beyond reasonable doubt and appellants are entitled for the benefit of doubt and on the basis of doubt they are entitled for acquittal. 13. Thus, in my opinion appeal deserves to be allowed. 14. Criminal Appeal No. 229 of 1991 (Jugal Kishore and Others Vs. State of U.P.) is allowed. 15. 13. Thus, in my opinion appeal deserves to be allowed. 14. Criminal Appeal No. 229 of 1991 (Jugal Kishore and Others Vs. State of U.P.) is allowed. 15. Judgment and order dated 08.02.1991 passed by 2nd Additional Sessions Judge Kanpur Nagar in Sessions Trial No. 73 of 1989 (State Vs. Jugal Kishore) under section 20 of NDPS Act, Govind Nagar District Kanpur Nagar and Sessions Trial No. 406 of 1989 (State Vs. Krishna Kumar Awasthi) under section 20 NDPS Act, Police Station Govind Nagar, District Kanpur Nagar is set aside. Accused/appellants Kirshna Kumar Awasthi and Jugal Kishore are acquitted from the charge under section 20 (b) (ii) of NDPS Act. 16. Lower Court record be sent back to the court concerned for compliance. 17. The case property be destroyed as per rules after the expiry of the period for appeal. 18. Ms. Rashmi Srivastava, Amicus Curiae will get Rs. 10,000/- as fee for assisting the court.