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2020 DIGILAW 995 (ALL)

Satendra Singh v. State of U. P.

2020-07-06

AJIT SINGH

body2020
JUDGMENT : 1. Heard Sri Agni Pal Singh, learned counsel for the appellant, Sri Ravi Prakash Pandey and Sri Ram Adhar Ram, learned A.G.A. appearing for the State. 2. Both the aforementioned criminal appeals are being decided by a common judgment and order as these two appeals were heard together and have been filed against one and the same judgment and order dated 29.01.2018 passed by the Trial Court. 3. These two appeals have been filed by the accused appellants challenging the judgment and order dated 29.01.2018 passed by learned Special Judge (D.A.A. Act)/Additional Sessions Judge, Etawah in Special Case No. 34 of 2015 (State Vs. Satendra Singh and another) convicting and sentencing the appellant under Section 8/20 NDPS Act for ten years’ rigorous imprisonment and fine of Rs. 1,00,000/- with default stipulation that in case of non payment of the fine appellant will undergo six months additional rigorous imprisonment. 4. In brief the prosecution story is that on 23.07.2015 Sub Inspector Mohd. Afzal along with his companion police constable Pradip Kumar while doing checking he met with SI Pankaj Kumar, Constable Manoj Kumar and Nand Lal of Police Station Civil Lines who were on checking duty. On a motorcycle No.U.P. 78 DK 8780 two persons came with two bags hanging on their backs from Shastri Chauraha towards railway station and seeing police team they began to turn their motorcycle back to Shastri Chauraha. At about 9:10 A.M. (morning) they were caught before LIC office. From their bags the police found charas (cannabis). In the bag of accused appellant Satyendra Singh there was 1.336 kgs of charas wrapped in five polythene (panni) packets and in the bag of Gajendra Singh there was 1.264 kgs. of charas in four round packets and one deflated packet. Out of both the packets two samples were prepared each weighing 30 Gms. Under NDPS Act case was lodged against them. Investigation was conducted and charge sheet was submitted in Court. The Special Court of NDPS Act took the cognizance of the offence. 5. On 16.12.2015 charges were framed against the accused appellants under Section 8/22 NDPS Act. The accused appellants denied the charges and claimed to be tried. 6. In support of the case from the side of prosecution as many as four witnesses were examined i.e. PW-1 Sub Inspector Mohd. 5. On 16.12.2015 charges were framed against the accused appellants under Section 8/22 NDPS Act. The accused appellants denied the charges and claimed to be tried. 6. In support of the case from the side of prosecution as many as four witnesses were examined i.e. PW-1 Sub Inspector Mohd. Afzal, PW-2 Constable Pradip Kumar, PW-3, Constable Ravindra Singh and PW-4, SI Ram Babu Singh. Besides this, the following documents were presented before the learned Trial Court :- 1. Ext. Ka-1 (consent letter) ; Ext. Ka-2 (recovery memo); Ext. Ka-3 (chik report); Ext. Ka-4 (copy of GD); Ext. Ka-5 and Ka-6 (site plan), Ext. Ka-7 (charge sheet) and Ext. Ka-8 (report of Forensic Science Laboratory). 7. The accused appellants were examined under Section 313 Cr.P.C. The accused appellants have stated in defence that they were falsely implicated in this case. 8. The Trial Court after considering the prosecution evidence and considering the arguments of both the sides, convicted the accused appellants as mentioned aforesaid. Aggrieved by the conviction these present appeals have been filed. 9. The learned counsel for the appellant has submitted that the impugned judgment and order is illegal, unwarranted and bad in the eyes of law. The sentence is too severe and the fine of Rs. 1,00,000/- imposed on the appellant is excessive. It is also argued that the alleged recovery of charas is planted by the police and imposition of the sentence is against the evidence on record. The prosecution story is not supported by independent witnesses and all the witnesses are police personnel. While making the search and recovery from the accused appellant compliance of relevant provisions of the NDPS Act was not ensured and done by the police party. Moreover, samples were not taken by the police from all the packets allegedly shown recovered from the accused. It was further argued by the learned counsel that no evidence has been produced by the prosecution about the safe keeping of the alleged recovered contraband after the alleged recovery. In this regard no Maalkhana Register was produced and no such evidence was also produced which could show that the alleged recovered contraband was ever produced before the concerned Station House Officer. It has also not been shown that the concerned Station House Officer had taken the custody of the contraband and then, it was directed to be placed in the safe custody of an authorised custodian. It has also not been shown that the concerned Station House Officer had taken the custody of the contraband and then, it was directed to be placed in the safe custody of an authorised custodian. Further argument advanced by the learned counsel is that the entire prosecution story casts serious doubt as it has been stated by the prosecution side that Daroga Ji was having weighing machine with him. It is not humanly possible that when the police personnels come in the field for checking the crime and its prevention, then, they will have with them weighing machine also. Therefore, the impugned judgment and order is liable to quashed and the appeal deserves to be allowed. 10. On the contrary, the learned AGA appearing on behalf of the State have supported the impugned judgment and order and they have argued that the impugned judgment is just, proper and correct in the eyes of law. The appeal deserves to be dismissed by this Court. 11. From the perusal of the record, this Court finds that it is no where mentioned in the impugned judgment and order or in the lower court record that Maalkhana Register was produced before the Trial Court. PW-1 before Trial Court has stated thus:- ^^Fkkus ij ekWy eqfYte nsus ds ckn cjken ekWy dgk tkrk gS D;k gksrk gS eq>s ugh ekywe gS-^^ 12. It is evident from the evidence on record that the prosecution failed to prove that samples were taken from all the bundles (packets) recovered from the accused appellants Gajendra Singh and Satendra Singh. Five packets were allegedly recovered from accused appellant Satendra and likewise five packets including one squashed packet were recovered from accused appellant Gajendra. But prosecution has not proved whether samples were taken from every packets recovered and were sent for examination by the expert. It has been held by a coordinate bench of this Court in Jitendra Singh Rathore Vs. State of U.P. decided on 8th January, 2014 (Crl. Appeal No. 4509 of 2006) in paragraphs 28 and 29 thus:- “28. Moreover from the record, it further appears that it is categorical case of the prosecution that 29 packets have been recovered from a white bag with which the appellant was found sitting and the appellant has stated the contraband article weighed about 25 Kgs. Appeal No. 4509 of 2006) in paragraphs 28 and 29 thus:- “28. Moreover from the record, it further appears that it is categorical case of the prosecution that 29 packets have been recovered from a white bag with which the appellant was found sitting and the appellant has stated the contraband article weighed about 25 Kgs. Charas but P.W.1, who had made the arrest and seizure of the appellant did not weighed the contraband article recovered from him and only on the statement of appellant it was believed to be 25 Kgs. Charas and no actual weight was taken by P.W.1 which further creates doubt whether the alleged contraband article was the same which was recovered from the possession of the appellant and sent to chemical analysis. It is further noted that 29 packets of Charas weighing about 25 Kgs. Charas is said to have been recovered from the appellant but the sample in question which was taken before the court by the Investigating Officer does not disclose or shows that whether the sample was taken from all the 29 packets recovered from him from a white bag and send to chemical analysis by P.W.3 which further creates doubt whether the 29 packets which were recovered also contained Charas as from the report of the chemical analysis shows that he has only received one bag sealed in a cloth which was found to be Charas. The prosecution has thus failed to show from the record that how many samples were taken from the contraband article which was recovered from the appellant and sent to chemical analysis. Lastly from the record it transpires that no sample of seal was sent along with the sample to chemical analysis for the purpose of comparing with the seal bearing on the sample, therefore, there is no evidence to prove satisfactorily that the seal found was in fact the same seal as was put on the sample bag immediately after seizure of the contraband. These loopholes in the prosecution case cannot sustain the conviction of the appellant in view of the judgment of the Apex Court in the case of State of Rajasthan vs. Gurmail Singh (Supra). 29. These loopholes in the prosecution case cannot sustain the conviction of the appellant in view of the judgment of the Apex Court in the case of State of Rajasthan vs. Gurmail Singh (Supra). 29. The learned A.G.A. though had tried to justify the conviction and sentence of the appellant but he could not point out to the Court from the record whether the police party had taken the actual weight of the article, i.e., Charas recovered from the appellant, whether the Malkhana register was produced by the prosecution to show that the article which was deposited by P.W. 1 in the Malkhana of the concerned police station and entrusted to P.W. 4 was the same which was produced before the court on 23.8.1999 and sent to the chemical analyst. Moreover, he could not also dispute the fact that the sample was not taken from all the 29 packets recovered from the white bag with which the appellant was sitting and only one sample was taken of the contraband article which was sent to chemical analysis.” (emphasis supplied) 13. The next argument advanced by the learned counsel for appellant is that Malkhana Register was not produced by the prosecution before the Court below to prove the seizure list. He has argued that no reason has been given why the same was not produced. He has relied upon paragraphs – 3 and 4 of the judgment of Apex Court in the case of State of Orissa Vs. Sitansu Sekhar Kanungo, 2003 (1) JIC 329 (paragraphs 3 and 4) the Apex Court has held thus :- “(3) The High Court, in a rather detailed judgment, stated that the vital question was whether necessary safeguards have been observed relating to the safe custody of articles alleged to have been seized and thus questioned the validity of seizure. Admittedly, the seizure was made on 31st January, 1993 and the articles seized were produced before the learned SDJM on 15.4.1993. The seizure lists related to collected samples of brown sugar/heroin, the place of seizure mentioned to be power house road, park area, Rourkela and the seizure lists were prepared on 31st January, 1993 at about 7.15 p.m. and 7.30 p.m. It has been argued before the High Court that in the seizure lists, there is a reference to the plant site police station case no. 43 of 1993 which, in the normal course of events, should not have been recorded and as such seizure lists became suspect. The High Court, however, did not find it convenient to deal with the matter oh the ground that it may not be appropriate to deal with the said plea for the first time in appeal. The High Court, however, placed strong reliance on the defence submission of non-production of the malkhana register. On this ground, the High Court recorded that the malkhana register has not been tendered in evidence and acceptance of the oral statement of PW5 that the articles were in the police malkhana of plant-site police station and nothing else is available on record would not arise. Significantly however, no reason whatsoever has been ascribed as to why the malkhana register could not be produced thereby exposed to the adverse presumption under the Evidence Act that in the event of its production, it would have thrown sufficient light to the detriment of the respondents in the matter. The High Court, in its order (being impugned) noted that even no official attached to the plant-site police station has been examined to further the stand that the seized articles were kept in the plant-site police station. PW5, the High Court noted, has not stated that he had deposited the articles in the malkhana of the plant-site police station and there is thus a vital omission about the custody of articles and it is on this score, the High Court thought it fit that the court cannot be a silent spectator while justice is being trampled by inept handling of the case. It further held that in the case at hand, the non-production of the malkhana register being one of the vital missing links, the other factors highlighted above coupled with the non-production of the malkhana register have given a fatality to the prosecution case. (4) The learned advocate appearing in support of the appeal, however rather confidently stated that since the provisions of section 57 of the Act are now settled to be only directory and not mandatory in nature, the question of non-production of the malkhana register though vital, but the success of a case does not and cannot depend upon it. It may be a mere irregularity but cannot go to the root of the prosecution which make the prosecution vulnerable. It may be a mere irregularity but cannot go to the root of the prosecution which make the prosecution vulnerable. At the first blush, the arguments seem to be rather convincing but on a closure scrutiny, however, it lost its efficacy by reason of the fact of there being no factual support therefore. The High Court has dealt with the matter purely on the factual score and concluded adversely by reason of non-production of malkhana register coupled with other set of facts, as argued before the High Court. The doubt which sprang up as regards the seizure lists, admittedly cannot be brushed aside. The seizure lists ought to have been prepared before the lodgment of the FIR and as such question of mention of the FIR no. in the seizure lists would not arise at all. But in the contextual facts, the indication of the case number in the seizure lists has resulted in the submission of the learned advocate for the defence before the High Court as also before this Court that this extra noting on the seizure lists cannot but be ascribed to be a manipulation in the document which is not permissible under the law. The High Court though not placed much reliance apparently thereon but obviously the same had its due impact and effect on the court since in the last paragraph, the High Court did speak of "other factors highlighted coupled with the non-production of malkhana register that have given fatality to the prosecution case'. This observation of the High Court by itself connotes that the High Court has taken note of it with due particulars and it is on the issue of facts that the High Court felt that there would be justice trampled if an order is passed in favour of the prosecution.” (emphasis supplied) 14. Having gone through the lower court record this Court finds that the accused were allegedly having various bundles of charas in their possession and it is no where mentioned in the recovery memo that the samples were taken from all the packets of the recovered charas from the possession of the accused persons. The accused appellant (Satyendra Singh) was having 1.336 kg. of charas, as per the prosecution case, and co-accused (Gajendra Singh) was having 1.264 kg. of charas. Samples were not taken from all the packets. The accused appellant (Satyendra Singh) was having 1.336 kg. of charas, as per the prosecution case, and co-accused (Gajendra Singh) was having 1.264 kg. of charas. Samples were not taken from all the packets. PW-1 has not stated in his statement before the Trial Court that samples of 30-30 grams were taken from all the packets (bundles) of the seized article. Even from the statement of PW-2 it is not evident that samples were taken from all the bundles recovered from the two bags of the accused persons. PW-2 has stated before the learned Trial Court thus:- ^^nksuks vfHk;qDrks dks tqeZ ls voxr djkrs gq, 9%10 ,-,e- ij fgjklr iqfyl esa ysdj pjl dks vyx vyx diM+ks esa j[kdj o 30&30 xkze okLrs uewuk eksgj gsrq pjl dks vyx&vyx fudkydj 'ks"k pjl dks vyx&vyx diM+ks esa j[kdj lhy eksgj fd;k] vkSj uewuk eksgj cuk;k-^^ 15. This Court has perused the entire evidence in the light of the argument that no Malkhana Register was produced in evidence by the prosecution side. Nowhere from the evidence of the prosecution it is evident that any special report of the alleged recovered contraband was sent to the higher officers as stipulated by the NDPS Act. It is also evident that alleged recovered contraband was never produced before the In-charge of the Police Station and he never checked or signed or gave the alleged recovered contraband to be kept in safe custody as no Malkhana Register was produced. 16. The argument raised by the learned counsel for appellants before this Court that the alleged recovery was made from the accused persons from a busy Shashtri Chauraha in front of LIC office in broad day light at 9:00 A.M., but no public witness i.e. independent witness was produced in support of the prosecution story regarding the alleged recovery from the accused persons, has force that help this Court take a different view than the view taken by the Trial Court. This Court goes through the entire record of the case and finds that no where it has been mentioned in the recovery memo that one or several persons were contacted by the police party to witness the alleged recovery of charas from accused but no public person came forward for giving the evidence. This Court goes through the entire record of the case and finds that no where it has been mentioned in the recovery memo that one or several persons were contacted by the police party to witness the alleged recovery of charas from accused but no public person came forward for giving the evidence. Had it been true that effort was made in that regard, the name and address of the public persons would have been certainly mentioned in the recovery memo. Their names having not been mentioned in the recovery memo, casts serious doubt on the veracity of the prosecution case. 17. The statement of the PW-1 in his cross examination also casts a serious doubt on the prosecution story. The PW-1 has stated that he has not called for weighing machine to weigh the recovered articles from any shopkeeper. He has further stated that he was having the same with him along with seal and other papers. But in the recovery memo there is nothing like this averment that this witness who has made the alleged recovery was having weighing machine with him and by that machine the weight of the alleged articles were taken. It is not humanly possible that when the police personnels come in the field for checking the crime and its prevention, then, they will have with them weighing machine also. Having regard to this, the argument of the learned counsel that as per the prosecution story Daroga Ji was having weighing machine with him has force and for this very reason the prosecution case becomes doubtful and is liable to be ignored. 18. After considering the rival submissions, it is clear from the judgment of this Court in the case of Jitendra Singh Rathore (Supra) that the prosecution was required to prove that samples were taken from all the packets recovered from the accused appellants and if this fact was not proved by the prosecution, the conviction of the appellants cannot be upheld. It is clear from the record that samples were not made for chemical analysis from all the packets recovered from the appellants and therefore, it cannot be conclusively held that all the packets recovered from the accused, were charas as alleged by the prosecution. 19. It is clear from the record that samples were not made for chemical analysis from all the packets recovered from the appellants and therefore, it cannot be conclusively held that all the packets recovered from the accused, were charas as alleged by the prosecution. 19. The final argument of the learned counsel for the accused-appellants regarding the non-compliance of Section 57, relying upon State of Orissa (Supra), is well founded since had the Malkhana Register been produced before the court below, seizure list could have been verified by the court below, however this Section is only directory and, therefore, much reliance on the same is not required. 20. As regards the non compliance of Section 57 of the NDPS Act which lays down that whenever a person makes any arrest or search under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior, this Court finds that no such evidence is led by the prosecution in the present case during the trial that any report was ever submitted about the such arrest and seizure in compliance of the Section 57 to the superior officer. 21. In Gurbax Singh Vs. State of Haryana, AIR 2001 (SC) 1002 the Hon’ble Apex Court has held in para 9 thus:- “………In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance was poppy husk, but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppyhusk.” (emphasis supplied) 22. This Court finds that in the present case Malkhana register was not produced by the prosecution during trial before the Court. Thus, there is non compliance of the relevant Section of the NDPS Act and the prosecution has failed to prove its case against the accused appellant in proper perspective. 23. From the perusal of the record of this case, it is not evident as to who was the officer–in-charge of the concerned police station to keep the recovered articles in safe custody and it is also not clear as to who was the officer-in-charge of the police station authorised to seal the samples so taken by the police team. Further, it has also not been brought on record whether any information was given within twenty four hours to the immediate official superior of the such arrest or seizure. Thus non compliance of Sections 55 and 57 of the Act coupled with the facts that there is no independent witness to the recovery as well as non production of Maalkhana Register before Trial Court and also non preparation of samples from all bundles goes to show that there are manifest errors factual and legal in the prosecution case that warrants interference by this Court in the impugned judgment and order. 24. In the result, both the appeals are allowed. The impugned judgment and order is set aside. 25. The appellants are on bail. The sureties and personal bonds of the accused appellants shall stand discharged. 26. Let a copy of this order be transmitted to the Court below for necessary compliance.