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2020 DIGILAW 881 (ALL)

Ram Pratap v. State of U. P.

2020-05-22

VIRENDRA KUMAR SRIVASTAVA

body2020
ORDER : Virendra Kumar Srivastava, J. 1. This appeal has been preferred against the judgment and order dated 10.6.1999, passed by Session Judge, Barabanki, in Cri. Trial (S.T.) No. 123 of 1994, arising out of Case Crime No. 98 of 1993 (State of U.P. Vs. Ram Pratap), u/s. 8/21 Narcotics Drugs and Psychotropic Subtances Act, 1985, (hereinafter referred as 'N.D.P.S. Act'), P.S. Loni Katra, District Barabanki, whereby the accused-appellant (for short 'appellant') Ram Pratap has been convicted and sentenced for rigorous imprisonment of 10 years and with fine of Rs. 1 lakh and in default in payment thereof, he has to further undergo 2 1/2 years rigorous imprisonment. 2. Briefly stated, the facts of the prosecution case are that on 31.5.1993, S.I. Kamala Kant Shukla (PW-2), posted at P.S. Loni Katra, was on patrolling duty in search of wanted criminal along with Const. Ram Vilash Mishra, Const. Jagdish Yadav and Const. Akhilesh Pandey and as the patrolling party reached in front of Janta Vastra Bhandar, situated near Bhilval Crossing, Sultanpur-Lucknow Road, at about 15:40 p.m., they saw a person standing at southern side of road in suspicious condition and was trying to escape. The police party, on sensing some doubt in view of his conduct, apprehended and caught him on spot, in front of Janta Vastra & Bartan Bhandar; upon interrogation, he told himself as Ram Pratap S/o. Ram Lakhan, R/o. Hulasi Kheda, P.S. Loni Katra, Barabanki. He further confessed that he was carrying 25 gms morphine; upon his disclosure statement, S.I. Kamala Kant Shukla (PW-2) told him that he had options either to get him searched before Gazetted Police Officer or before patrolling police officer. Thereupon, instead of opting any option, the appellant started apologizing to police personnel . Thereafter, appellant was searched out by patrolling police party with his consent and 25 gms of illegal morphine was recovered from his possession. Thereafter, recovery memo (Ex. Ka-6) was prepared; recovered contraband morphine was sealed; appellant was arrested and a criminal case on the basis of recovery memo was lodged at P.S. Loni Katra, Barabanki, as Case Crime No. 98 of 1993, u/s. 8/21/22 N.D.P.S. Act. 3. Investigation was handed over to S.I. Vashisht Dhar Dubey, who recorded the statement of witnesses; inspected the place of occurrence and prepared site plan (Ex. 3. Investigation was handed over to S.I. Vashisht Dhar Dubey, who recorded the statement of witnesses; inspected the place of occurrence and prepared site plan (Ex. Ka-9); recovered contraband morphine was sent to Forensic Science Laboratory, Lucknow, U.P., for chemical examination and as per chemical examination the said contraband goods was found as heroine. After investigation charge sheet (Ex. Ka-10) was filed against the appellant. 4. The accused-appellant was charged for offence u/s. 8/21 N.D.P.S. Act; to which he pleaded not guilty and claimed for trial. 5. In support of the prosecution case, the prosecution examined Const. Keshav Singh (PW-1), S.I. Kamala Kant Shukla (PW-2) and H.C. Alam Husain (PW-3). S.I. Kamala ant Shukla (PW-2) is witness of fact, whereas rest witnesses are formal witnesses. 6. Genuineness of the formal police papers i.e. site plan (Ex. Ka-9), charge sheet (Ex. Ka-10) were admitted by the learned counsel for appellant. 7. Appellant was examined under Section 313 of Code of Criminal Procedure, 1973, (in short 'Code') wherein he stated that he had been falsely implicated due to enmity as he did not sell the clothes on the lower price to the arresting police officer and one Constable. In defence, appellant filed a copy of letter, addressed to District Magistrate, Barabanki, through under postal certificate, showing the enmity with the police officer of concerned police station and also filed a register of business transaction to show that he carries business of clothes. Learned trial Court, after going through the evidence available on record as well as after due hearing the learned counsel for both the parties, convicted and sentenced the appellant as above. 8. Aggrieved by the aforesaid judgment and order, the appellant has filed this appeal. 9. Heard Sri. A.P. Mishra, learned counsel for appellant, Sri. Pankaj Kumar Tiwari, learned A.G.A. for the State and perused the record. 10. Learned counsel for the appellant submitted that prosecution case, based on solitary statement of S.I. Kamala Kant Shukla (PW-2), is wholly unreliable as the other police witnesses of patrolling party have not been examined by the prosecution. He further submitted that mandatory provision of sections 50, 55 and 57 of N.D.P.S. Act were not complied with. It has further been submitted that recovered contraband goods was not weighed either at the time of recovery or before the trial Court and no sample was taken at the time of recovery. He further submitted that mandatory provision of sections 50, 55 and 57 of N.D.P.S. Act were not complied with. It has further been submitted that recovered contraband goods was not weighed either at the time of recovery or before the trial Court and no sample was taken at the time of recovery. Learned counsel further submitted that the alleged place of recovery is public place but no effort to invite the public witness at the time of recovery was made by the police party. Learned trial Court without proper appreciation of the evidence available on record has illegally convicted the appellant vide impugned judgment and order which is liable to be set aside as the prosecution has miserably failed to prove its case beyond reasonable doubt. In support of his argument learned counsel for the appellant has placed reliance on law laid down by Hon'ble Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, 2010 (2) EFR 755 and State of Rajasthan Vs. Parmanand and another, (2014) 2 SCC (Cri.) 563. 11. Learned A.G.A. vehemently opposed the submission of learned counsel for the appellant and submitted that there is no illegality in the impugned judgment and order as it is settled provision of law that only on the solitary testimony of witness, conviction can be maintained and statement of police witness cannot be rejected on the ground that he is a police witness. Learned A.G.A. further submitted that impugned judgment and order, passed by trial Court, is well reasoned, well discussed and appeal is liable to be dismissed. 12. Prosecution case is based on solitary oral testimony of S.I. Kamla Kant Shukla (PW-2) because Const. Keshav Singh (PW-1) and H.C., Alam Husain (PW-3) are not eye witnesses. It is settled principle of law that only on account of the fact that prosecution case is based on sole testimony of police witness, it cannot be thrown out, if the evidence of such witness is wholly reliable. Thus it has to be seen whether the testimony of PW-2 is wholly reliable or not. 13. S.I. Kamla Kant Shukla (PW-2) has stated that on 31.5.1993 he was posted as Sub-Inspector, P.S. Loni Katra and was on patrolling duty in search of wanted criminals along with Const. Ram Vilash Mishra, Const. Jagdish Yadav and Const. Akhilesh Pandey. Thus it has to be seen whether the testimony of PW-2 is wholly reliable or not. 13. S.I. Kamla Kant Shukla (PW-2) has stated that on 31.5.1993 he was posted as Sub-Inspector, P.S. Loni Katra and was on patrolling duty in search of wanted criminals along with Const. Ram Vilash Mishra, Const. Jagdish Yadav and Const. Akhilesh Pandey. He has further stated that at about 15:40 p.m. as they reached in front of Janta Vastralaya, situated at Bhilval crossing market, Lucknow-Varanasi highway, they saw a person standing to the south side of the shop and as he saw the police persons, he tried to escape. Sensing some doubt in view of his conduct, the police personnel caught him near the shop of Janta Vastralaya and Bartan Bhandar and upon interrogation, he introduced himself as Ram Pratap S/o. Ram Lakhan, R/o. Hulasi Kheda, P.S. Loni Katra, Barabanki. Stating that the said appellant disclosed the police personnel that he had 25 gms of morphine with him, this witness further stated that he had asked the appellant whether he wanted to be searched out before any Magistrate or any Gazetted Officer, the appellant replied that since the offence had already been known to the police personnel that he was carrying morphine, if the police personnel searched him, he had no objection. He (PW-2) further stated that the police personnel, after taking personal search of each other and assuring that they had no illegal/contraband goods, took personal search of appellant and recovered 25 gms of morphine wrapped in plastic coated sheet from pocket of his baniyan. According to this witness further, the appellant was informed that possession of alleged morphine is an offence, punishable under Section 8/18/21 N.D.P.S. Act. This witness further stated that recovered contraband morphine was sealed in white cloth, sample seal and recovery memo (Ex. Ka-6) were also prepared on the spot whereupon the police party, present on the spot, as well as appellant had put their signature; and a copy of recovery memo was provided to the appellant. This witness further stated that at the time of recovery, so many persons (public) were gathered but no one dared to join as witness. Ka-6) were also prepared on the spot whereupon the police party, present on the spot, as well as appellant had put their signature; and a copy of recovery memo was provided to the appellant. This witness further stated that at the time of recovery, so many persons (public) were gathered but no one dared to join as witness. He further stated that after the alleged recovery, he along with accused-appellant and recovered morphine came at police station and lodged the F.I.R. He further stated that at the time of lodging F.I.R. he was in-charge of that police station as Station House Officer was out of station so he kept the case property in his possession and no one was allowed to touch and handle the case property. Seeing the alleged recovered morphine, as produced before the trial Court, he identified the alleged recovered morphine (Material Ex. 1), polythene (material Ex. 2) and sample seals (Ex. Ka 3 and 4). In cross-examination, this witness has denied that he knew the appellant by profession. He further denied that Janta Vastralaya, Bhilval was owned by the appellant. He further denied the suggestion, put by the learned counsel for appellant, that on 20.02.1993 he had purchased some clothes worth Rs. 1,475/- on credit and he also denied that Const. Ram Vilash had also purchased on 23.02.1993 clothes of Rs. 525/- on credit and since the appellant was asking his money he was falsely implicated in this case. Admitting that the alleged place of recovery is surrounded by so many shops and a Gramin Bank where so many people were gathered, he further stated that he had not inquired any person regarding their identity and address. He further admitted that no sample of alleged recovered contraband goods was separated on the place of occurrence. Stating that the recovered contraband goods was weighed at the place of occurrence, he further admitted that he did not learn which Constable had brought the weighing scale. He further admitted that the seal, whereby he had sealed the recovered goods, was remained with him and he had not given it to any employee. 14. Const. Keshav Singh (PW-1) has stated that on 18.6.1993 he was posted as Pairveekar of P.S. Loni Katra and had produced the alleged sealed recovered morphine along with sample seal before the concerned Judicial Magistrate. 14. Const. Keshav Singh (PW-1) has stated that on 18.6.1993 he was posted as Pairveekar of P.S. Loni Katra and had produced the alleged sealed recovered morphine along with sample seal before the concerned Judicial Magistrate. This witness further stated that sample of alleged morphine was separated before the concerned Magistrate, sealed separately and docket (Ex. ka-1) was prepared for chemical examination. In cross examination this witness admitted that the sample of recovered morphine was separated by the Office peon and was not weighed before the concerned Magistrate. He further admitted that approximately 8 gms would have been separated. 15. Head Const., Alam Husain (PW-3) is also not an eye witness. He had proved the Chik F.I.R. (Ex. Ka-7) and copy of General Diary (Ex. Ka-8). 16. Severe punishment has been provided in the N.D.P.S. Act to check the misuse of this Act by the police personnel or officers and certain safeguards particularly Section 50 of N.D.P.S. Act has been incorporated in this Act that search of the suspected person must be done before the Magistrate or Gazetted Officer. Similarly Section 55 and 57 of N.D.P.S. Act provides that seized contraband article be kept by Station House Officer in safe custody and report of arrest and seizure be sent immediately to immediate Superior Officer within 48 hours. 17. Hon'ble Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, 2010 (2) EFR 755, while discussing the importance and relevancy of section 50 of N.D.P.S. Act, in para-22, has held as under:- "22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Poll (1974) 2 SCC 33 , it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well." (Emphasis supplied) 18. Hon'ble Supreme Court in State of Rajasthan Vs. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well." (Emphasis supplied) 18. Hon'ble Supreme Court in State of Rajasthan Vs. Parmanand and another, (2014) 2 SCC (Cri.) 563, again in paragraph-17, has held as under:- "In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval." 19. Admittedly, the prosecution has not produced other eyewitnesses of the alleged recovery i.e. Ram Vilash Mishra, Const. Akhilesh Chandra Pandey and Const. Jagdish Yadav. No explanation has been offered by the prosecution for their non-production. These witnesses are police personnel. Non-production of these witnesses, where serious allegation has been made against S.I. Kamala Kant Shukla (PW-2) by the appellant, is serious lacuna which has made the prosecution case very doubtful. 20. There is another serious lacuna in the prosecution case, as stated by S.I. Kamala Kant Shukla (PW-2) that after recovery of the said morphine, he kept it in his possession and no one was allowed to touch or handle it as the Station House Officer was not present. 20. There is another serious lacuna in the prosecution case, as stated by S.I. Kamala Kant Shukla (PW-2) that after recovery of the said morphine, he kept it in his possession and no one was allowed to touch or handle it as the Station House Officer was not present. It means that he had not deposited the recovered morphine in Malkhana of concerned police station. He (PW-2) has not stated anything as to when he handed over the seized contraband goods to concerned S.H.O. for keeping it in safe custody. He (PW-2) has also not stated that being S.H.O. at the time of seizure why he did not deposit the contraband seized article into Malkhana of concerned police station and kept it in his personal custody. 21. From perusal of recovery memo (Ex. ka-6), it transpires that only on the disclosure statement, made by the appellant that he had 25 gms morphine, Kamala Kant Shukla (PW-2) had arrested him. Although this witness in his cross-examination has stated that recovered article was weighed at the time of recovery but neither this fact has been mentioned in the recovery memo nor it has been disclosed by this witness as to who had brought the weighing scale. 22. In addition to above, Kamala Kant Shukla (PW-2) has stated that the seal, whereby the recovered goods was sealed, was continuously remained in his possession and he had not given the same to any employee. Before the trial Court, he had identified the seal present on the recovered article and said that alleged seal was matching with the sample seal, whereas Const. Keshav Singh (PW-1) has stated that he had produced the sealed recovered article, sample seal before the Magistrate on 18.06.1993 where the recovered and sealed contraband goods was opened; sample was separated, rest contraband goods was again sealed before the Magistrate. This witness has not stated that which seal was put on sample and on the rest recovered contraband goods when it was again sealed before the Magistrate. This witnesses has neither stated that he had carried the seal of PW-2 nor stated anything about the presence of PW-2 before the Magistrate at the time of separation of sample. Kamala Kant Shukla (PW-2) has also not stated anything regarding his presence before the concerned Magistrate at the time of separation of alleged sample. This witnesses has neither stated that he had carried the seal of PW-2 nor stated anything about the presence of PW-2 before the Magistrate at the time of separation of sample. Kamala Kant Shukla (PW-2) has also not stated anything regarding his presence before the concerned Magistrate at the time of separation of alleged sample. Thus, if PW-2 was not present at the time of separation of sample before concerned Magistrate and he had not given his seal whereby the contraband goods was sealed, the statement of PW-2 that the seal, present on the sealed contraband goods, produced during trial before trial Court, was similar to the seal put by him at the time of recovery, is contradictory and unreliable which makes the prosecution story, based on sole testimony of this witness, is doubtful. 23. In addition to above, admittedly the appellant, prior to his search, was not produced before any Gazetted Officer or Magistrate, whereas according to prosecution before his search the police personnel were informed by the appellant that he was carrying the morphine. Prosecution has also not produced any written consent of the appellant for his search. From perusal of testimony of PW-2, it does not transpire that any efforts were made by him to produce the appellant before any Gazetted Officer or Magistrate, as required by Section 50 of N.D.P.S. Act, in view of law laid down by Apex Court in Vijaysinh Chandubha Jadeja (Supra). 24. Further, it is also pertinent to note at this juncture that not only the manner in which the appellant was searched, is doubtful, the prosecution has also not prosecuted the case seriously, knowing that severe punishment has been provided in NDPS Act. It produced only one witness of fact i.e. PW-2 and withheld other witness without any justification. 25. In the light of above discussion, it is clear that the prosecution has failed to prove the mandatory compliance of Section 50 N.D.P.S. Act. In absence of compliance of mandatory provision of Section 50 N.D.P.S. Act, the prosecution case, based on sole testimony of police personnel (PW-2) whose statement is not wholly reliable, cannot be held as proved beyond reasonable doubt in view of the other illegalities and material irregularity committed by PW-2 as discussed above. 26. Thus I am of the view that prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant. 26. Thus I am of the view that prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant. The trial Court has not properly discussed the evidence produced by the prosecution and has passed the impugned judgment and order against the settled principle of law including provisions of N.D.P.S. Act. I am, therefore, unable to uphold the conviction and sentence of the appellant. The appellant is entitled to be acquitted. The impugned judgment and order is liable to be set aside and accordingly, appeal is liable to be allowed. 27. In view of the above, impugned judgment and order dated 10.06.1999, passed by Session Judge, Barabanki, in Criminal trial (S.T.) No. 123 of 1994, arising out of Case Crime No. 98 of 1993 (State of U.P. Vs. Ram Pratap), under Section 8/21 N.D.P.S. Act, P.S. Loni Katra, District Barabanki, is set aside and accused appellant is acquitted. Consequently, the appeal is allowed. 28. Keeping in view the provision of Section 437-A of the Code, appellant-Ram Pratap is hereby directed forthwith to furnish a personal bond of a sum of Rs. 20,000/- and two reliable sureties each of the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against this judgment or for grant of leave, appellant-Ram Pratap, on receipt of notice thereof, shall appear before Hon'ble Supreme Court. 29. Appellant is on bail, his personal bond is cancelled and sureties stand discharged. 30. Let a copy of this judgment alongwith the lower court record be sent immediately to the Trial Court concerned for necessary compliance.