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2023 DIGILAW 333 (UTT)

State of Uttarakhand v. Mahfooj

2023-05-23

ALOK KUMAR VERMA

body2023
JUDGMENT : Present Government Appeal has been filed against the judgment dated 06.07.2004, passed by learned Ist FTC/Additional Sessions Judge, Haridwar in Special Criminal Case No.16 of 2001, “State vs. Mahfooj”, by which, the respondent – accused has been acquitted of the charge under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘‘Act, 1985”). 2. The prosecution case, briefly stated, is that on 26.06.2001, Sub-Inspector Gyanendra Singh Rana (PW1), Sub-Inspector Rajendra Kumar Tyagi (PW2) and Head Constable Sahab Singh (PW3) were present on patrolling duty. They received a secret information that a person is going towards Arya Nagar carrying poppy straw in his bag. In spite of an endeavour, no public witness could be secured. Accordingly, a raid was conducted. Respondent – accused was apprehended. On enquiry, he disclosed his name and address. He informed them that he had poppy straw in his bag. They apprised him that they intend to search him and whether he wishes to be searched in the presence of a Gazette Officer or a Magistrate. He gave his consent for being searched before them. Accordingly, a search was conducted. During the search of his bag, they found 4 kg. 500 grams of poppy straw (Material Ext.3) in his blue colored polythene bag (Material Ext.2). He was arrested at 11:15 a.m. The recovered contraband was sealed. The said contraband was taken into possession vide Recovery Memo (Ext. Ka1). An FIR (Ext. Ka.2) was lodged by Gyanendra Singh Rana (PW1). The said contraband was sent to the Chemical Examiner, who found the same to be “poppy straw”. Charge-sheet was submitted after completion of the investigation. 3. Charge under Section 8/15 of the Act, 1985 was framed. Accused pleaded not guilty and claimed to be tried. 4. At the trial, the prosecution examined four witnesses. 5. (PW1) Gyanendra Singh Rana, (PW2) Rajendra Kumar Tyagi and (PW3) Sahab Singh were members of the raiding party. (PW4) Sub-Inspector Dev Raj Singh Rathi is Investigating Officer. 6. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973. He denied all the incriminating evidence, produced by the prosecution. 7. Accused did not adduce any defence evidence. 8. Learned Trial Court heard arguments of both the parties, appreciated the evidence and passed the impugned judgment, by which, respondent – accused has been acquitted. 9. Mr. He denied all the incriminating evidence, produced by the prosecution. 7. Accused did not adduce any defence evidence. 8. Learned Trial Court heard arguments of both the parties, appreciated the evidence and passed the impugned judgment, by which, respondent – accused has been acquitted. 9. Mr. S.S. Adhikari, learned Deputy Advocate General for the State, argued that in order to prove its case, prosecution examined four witnesses and they have supported the prosecution case. Respondent denied the prosecution case and has stated that he has been falsely implicated, but, he did not produce any evidence in his defence. Therefore, learned Trial Court has committed manifest error in disbelieving the evidence of the prosecution’s witnesses. 10. On the other hand, Mr. Sajjad Ahmed, Advocate appearing for the respondent, has supported the impugned judgment. 11. As per the Table prepared in terms of Section 2(xxiii-a) and Section 2(vii-a) of the Act, 1985, 1,000 grams of poppy straw is small quantity and greater than 50 kg. of poppy straw is commercial quantity (Entry No.110). Therefore, according to the prosecution, the recovered poppy straw was non-commercial. 12. The onus is on the prosecution to prove that the seized material was in safe custody. The prosecution must prove that the seized material before being sent to the laboratory for testing was kept in safe custody. 13. Section 55 of the Act, 1985 deals with the procedure to be followed by Officer-in-Charge of a police station. According to the said provision, an Officer-in-Charge of the police station shall take charge for safe custody of articles seized under the Act and shall allow the officer bringing such articles to affix his seal to such articles and the Officer-in-Charge shall also seal the articles with his own seal. Therefore, the sealing process should be according to the provisions of Section 55 of the Act, 1985. 14. (PW1) Sub-Inspector Gyanendra Singh Rana, a member of the raiding party and informant of the First Information Report, has stated that after coming to the police station, he neither produced the case property and recovery memo before the in-charge police station, nor did the in-charge of police station put his seal on it. 15. (PW2) Sub-Inspector Rajendra Kumar Tyagi, a member of the raiding party, has stated that Kuldeep Aswal was the Station House Officer of the police station at the time of the incident. 15. (PW2) Sub-Inspector Rajendra Kumar Tyagi, a member of the raiding party, has stated that Kuldeep Aswal was the Station House Officer of the police station at the time of the incident. He further stated that the accused and the recovered material were neither produced before the Station House Officer nor his seal was affixed on the recovered contraband. 16. Malkhana register of the police station was not produced before the Trial Court. There is no evidence on record to show that the seized material was kept in the safe custody. Therefore, the prosecution evidence is wholly unconvincing so far as it relates to the question of safe custody of the alleged recovered contraband. 17. The contraband was received by the Forensic Science Laboratory, Agra on 28.06.2001. During this period, it was not tampered with, this fact has not been proved by the prosecution beyond reasonable doubt. 18. There is no material on record to show in whose custody and where the seized material was kept from the time of seizure till the time it was received by the laboratory. This is big unexplained gap as regards the safe custody of the alleged recovered contraband, which makes the prosecution case doubtful. 19. As per the prosecution case, 4 kg. 500 grams of poppy straw was recovered from the possession of the accused and entire recovered contraband was sent to the laboratory for testing. The Laboratory’s report indicates that 4 kg. 250 grams of poppy straw was made available to the laboratory. While Head Constable Sahab Singh (PW3) has given a statement that 100 grams of poppy straw was taken out for sample from the recovered poppy straw. These contradictory statements have also not been explained by the prosecution. 20. The person by whom the recovered contraband was made available to the laboratory has also not been clarified by the prosecution, while it has been stated by Sub-Inspector Dev Raj Singh Rathi, Investigating Officer, that the recovered contraband was not sent by him for testing. 21. As per the Recovery Memo (Ext. Ka.1), poppy straw was recovered from the blue colored polythene bag carried by the accused. During the trial, when polythene bag (Material Ext. 2) and poppy straw (Material Ext. 3) were produced, it was deposed by all the witnesses of the raiding party that the said bag (Material Ext. 2) was green in colour. As per the Recovery Memo (Ext. Ka.1), poppy straw was recovered from the blue colored polythene bag carried by the accused. During the trial, when polythene bag (Material Ext. 2) and poppy straw (Material Ext. 3) were produced, it was deposed by all the witnesses of the raiding party that the said bag (Material Ext. 2) was green in colour. This material contradiction has also not been explained by the prosecution. 22. The link evidence suffers from the lacunae. Neither the Malkhana register of the police station was producing nor any reason has been given by the prosecution for not producing the Malkhana register. The prosecution has not proved beyond reasonable doubt that after the seizure, the alleged recovered contraband was kept in safe custody in the Malkhana of the police station till it was sent to the laboratory. The variation in the weight of the contraband and difference of colour of the polythene bag (Material Ext.2) indicate that either the said contraband was tampered with or the contraband sent to the laboratory was not the contraband which was alleged to have been recovered from the respondent – accused. 23. Under the said circumstances, the case of the prosecution becomes doubtful. Therefore, I am in complete agreement with the view taken by learned Trial Court and see no reason to interfere with the judgment impugned herein. 24. As a result, the instant Government Appeal is liable to be dismissed; the same is dismissed accordingly.