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2020 DIGILAW 402 (UTT)

Hayat Singh v. State Of Uttaranchal

2020-10-12

N.S.DHANIK

body2020
JUDGMENT N. S. Dhanik, J. - This appeal is directed against the judgment and order dated 15.5.2006, passed by the Sessions Jude, Bageshwar in Sessions Trial No. 32/2004, whereby the appellant has been held guilty for the offence under Section 20(b) read with Section 22 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act') and sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs. 5,000/-. 2. In brief, the prosecution case is that on 17.8.2004, when S.I. Kalyan Singh, Constable Devendra Pande, Subhash Chandra and driver Ganga Ram were on patrolling duty on Kapkot Road, they saw two persons coming on the motorcycle and on seeing the police, they tried to turn back. On suspicion, those two persons were detained and interrogated, upon which they disclosed that they were carrying charas. Thereafter these persons were apprised of their legal rights and with their consent, their personal search was conducted. During the search, illegal charas was recovered from the appellant and the other person as well. Sample was taken out from the recovered charas and these were sealed along with the seal. S.I. Kalyan Singh prepared the recovery memo at the spot. On the basis of the recovery memo, case was registered against the accused appellant and necessary entries were made in the G.D. Initial investigation of the case was done by S.I. Pooran Chandra Pande, who inspected the place of occurrence, recorded the statements of the witnesses and sent the contraband for chemical examination. Thereafter further investigation was done by Inspector In-charge M.P. Juyal and on completion of the investigation and after receiving the chemical examination report, he submitted the chargesheet. 3. On 18.12.2014, learned Sessions Judge, Bageshwar framed the charge for the offence punishable under Section 20(b) read with Section 22 of the Act. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 4. To prove its case, the prosecution examined as many as five witnesses. 3. On 18.12.2014, learned Sessions Judge, Bageshwar framed the charge for the offence punishable under Section 20(b) read with Section 22 of the Act. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 4. To prove its case, the prosecution examined as many as five witnesses. PW1 is S.I. Kalyan Singh, who prepared the recovery memo; PW2 is Devendra Pande, who was the member of the patrolling party; PW3 is Constable Ajab Singh, who had taken the sample of the alleged contraband to the Forensic Science Laboratory, Agra and deposited it there; PW4 is S.I. Pooran Chandra Pande, who conducted the initial investigation of the case; PW5 is Constable Clerk Pooran Chandra, who prepared the chick report and made the necessary entries in the G.D. 5. Thereafter statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has falsely been implicated in this case. In defence, the appellant/accused produced DW1 Mahesh Chandra Singh and DW2 Indra Singh Parihar. 6. After appreciating the evidence and after hearing learned Counsel for the parties, learned Sessions Judge convicted and sentenced the accused appellant, as stated hereinabove. 7. Pw1 is S.I. Kalyan Singh, in his deposition, narrated the incident as mentioned in the recovery memo. He admitted that the recovery memo was prepared by him. He stated that on 17.8.2004, he along with the police party departed from the police station at 4.30 pm for the patrolling duty. When they were busy in the patrolling, he saw two persons on the motorcycle. On seeing the police party, they became frightened and tried to turn back. Thereafter the police party arrested and interrogated them, upon which they disclosed that they were carrying charas. They were apprised that they can be searched before any Gazetted Officer or the Magistrate, but they asked the police party to conduct their search. They gave written consent for the same. All the members of the police party conducted the personal search of each other in order to verify that they were not in possession of any illegal article. 500 grams charas were recovered from the possession of the appellant. They gave written consent for the same. All the members of the police party conducted the personal search of each other in order to verify that they were not in possession of any illegal article. 500 grams charas were recovered from the possession of the appellant. Sample of 50 grams was prepared out of the recovered contraband and all these packets were sealed along with the seal and the recovery memo was prepared at the spot. After informing the higher officers, the accused and the case property were brought to the police station and case was registered. In the cross-examination, this witness has admitted that he did not know as to from where the balance was brought by the driver Ganga Ram nor did he ask about it from him. He also stated that he cannot say as how many pieces of charas were recovered. 8. Pw2 is Devendra Pande, who was the member of the patrolling party. In examination-in-chief, he has narrated the same thing as is written in the recovery memo. In his cross-examination, he admitted that no member of the police party was sent to procure the public witness. He also admitted that he did not know as to from whom the balance was procured. 9. Pw4 is S.I. Pooran Chandra Pande, who conducted the initial investigation of the case. In his cross- examination, he has admitted that he did not record the statement of the driver Ganga Ram, who was a member of the police party and had brought the balance to weigh the contraband. This witness has also admitted that he had not sent the sample for the chemical analysis. He has further admitted that he did not try to know the name of the person from whom the balance was procured. This witness has also admitted that he did not see the malkhana register. He has also stated in his cross-examination that he cannot tell as to whether the case property was deposited in the police station or not. 10. Defence witness DW1 Mahesh Chandra Singh has stated that the accused appellant had been his driver since the last 6-7 years. On the date of alleged incident, he received a telephone call from the police station that the accused appellant had been called for interrogation in connection with some case. Thereafter he took along DW2 Indra Singh Parihar and went to the police station. On the date of alleged incident, he received a telephone call from the police station that the accused appellant had been called for interrogation in connection with some case. Thereafter he took along DW2 Indra Singh Parihar and went to the police station. In the police station, he was told that the accused appellant would be let off after the interrogation. Thereafter both of them returned from the police station. He submitted that the police did not tell him about recovery of charas from the accused appellant. DW2 has corroborated the statement of DW1. 11. Heard learned Counsel for the parties and perused the material available on record. 12. Learned Counsel for the appellant/accused argued that appellant has been falsely implicated in this case and no recovery was made from his possession. Learned Counsel further contended that the compliance of necessary and mandatory provisions of Section 42, 50 and 55 of the Act have not been made in the present case. Learned Counsel for the appellant placed reliance on the verdicts of the Hon'ble Apex Court rendered in Arif Khan @ Agha Khan, (2018) 4 Supreme 492 , and in Kishan Chand v. State of Haryana, (2013) 2 SCC 502 . 13. Learned State Counsel argued that the prosecution has successfully proved its case by adducing credible an sufficient evidence and there is no illegality in the impugned judgment and order. 14. Having heard the rival submissions and on perusing the evidence on record, I find substance in the argument put forth by learned Counsel for the appellant/accused due to the following reasons: (i) That the prosecution has not produced the evidence to prove that the recovered contraband was kept intact in the malkhana from the alleged date of its recovery. (ii) That the personal search of the appellant was not conducted before a Magistrate or any Gazetted Officer. (iii) That except stating that the appellant himself expressed desire to be searched by the police party itself, no other reason has been recorded as to why no attempt was made to conduct the personal search of the appellant before a Magistrate or a Gazetted Officer. (iv) That there is no evidence on record to prove that the information were given to the higher officers forthwith or within a very short time after the alleged incident. (iv) That there is no evidence on record to prove that the information were given to the higher officers forthwith or within a very short time after the alleged incident. (v) That as per the statement of PW3 Constable Ajab Singh, he received the sample on 23.8.2004, but deposited it in the FSL, Agra on 25.8.2004. However, no evidence has been produced to show that during this period the sample was kept intact and no tampering was done with it, which creates serious doubt in the prosecution (vi) That PW1 S.I. Kalyan Singh, who was leading the police party and who prepared the recovery memo, has admitted in his cross-examination that he did not know as to from where the balance was brought by the driver Ganga Ram nor did he ask about it from him. He also stated that he cannot say as how many pieces of charas were recovered. (vii) That there is no independent public witness of the alleged recovery. Further, PW2 in his cross- examination has admitted that no member of the police party was sent to procure the public witness. (viii) That there is no evidence on the point as to from where and from whom, the balance was procured. PW1 and PW2 have admitted this fact. Moreover, PW4, who conducted the initial investigation, has admitted that he did not record the statement of the driver Ganga Ram, who had brought the balance to weigh the contraband and even did not try to know the name of person from whom the balance was procured. (ix) That PW4 also admitted that he had not sent the sample for the chemical analysis and did not see the malkhana register. He has also stated that he cannot tell as to whether the case property was deposited in the police station or not. (x) That DW1 and DW2 both have stated that the police did not inform him that the appellant was arrested after recovery of charas from him. Rather, they were told by the police that the appellant had been called for interrogation in connection with some case and after interrogation he would be let off. 15. (x) That DW1 and DW2 both have stated that the police did not inform him that the appellant was arrested after recovery of charas from him. Rather, they were told by the police that the appellant had been called for interrogation in connection with some case and after interrogation he would be let off. 15. In the case of Arif Khan @ Agha Khan, (2018) 4 Supreme 492 , the personal search of the accused was not conducted in the presence of any Magistrate or a Gazetted officer and the Hon'ble Apex Court observed that in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the Act. 16. In another case Kishan Chand v. State of Haryana,2013 2 SCC 50, relied by the learned Counsel for the appellant, the Hon'ble Apex Court held that since there has been total non-compliance with the provisions of Section 42 of the Act, and set aside the conviction applying the ruling of Constitution Behch in Karnail Singh, (2009) 8 SCC 539 . 17. For the reasons recorded above and in view of the legal proposition discussed above, the appeal is allowed. Impugned judgment and order is set aside. Conviction and sentence imposed on the appellant is quashed. Appellant is on bail. He need not surrender unless wanted in connection with any other case. 18. Let a copy of this judgment, along with LCR, be sent to the Court below. Trial court to also ensure compliance of Section 437-A of the CrPC.