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IN THE HIGH COURT OF RAJASTHAN
Ifaqat Ali Khan, J.
JUGAL KISHORE AND OTHERS - Appellant
Vs.
STATE OF U.P. - Respondent
Criminal Appeal No. 229 of 1991
Decided On : 06-04-2018
NDPS ACT - SECTION 42 - SECTION 20 (B) (II) - The court held that the provisions of Section 42 of the NDPS Act are not applicable in the present case as the accused were apprehended on the open road and not in a building, conveyance, or enclosed place.
Fact of the Case:
The appellants, Jugal Kishore and Krishna Kumar Awasthi, were convicted under Section 20(b)(ii) of the NDPS Act for possessing 500 grams of charas each. They appealed the conviction, arguing that the provisions of Section 42 of the NDPS Act were not complied with, there was no public witness to the arrest and recovery, and the quantity of charas recovered was not weighed.
Finding of the Court:
The court found that the provisions of Section 42 of the NDPS Act were not applicable in this case as the accused were apprehended on the open road and not in a building, conveyance, or enclosed place. The court also found that the absence of a public witness to the arrest and recovery did not vitiate the prosecution case, as the police had made efforts to obtain public witnesses but were unable to do so. However, the court found that the prosecution had failed to prove the quantity of charas recovered, as it was not weighed on a scale or balance.
Issues: 1. Whether the provisions of Section 42 of the NDPS Act were applicable in this case. 2. Whether the absence of a public witness to the arrest and recovery vitiated the prosecution case. 3. Whether the prosecution had proved the quantity of charas recovered.
Ratio Decidendi: 1. The court held that the provisions of Section 42 of the NDPS Act are not applicable where the accused are apprehended on the open road and not in a building, conveyance, or enclosed place. 2. The court held that the absence of a public witness to the arrest and recovery does not vitiate the prosecution case, as the police had made efforts to obtain public witnesses but were unable to do so. 3. The court held that the prosecution had failed to prove the quantity of charas recovered, as it was not weighed on a scale or balance.
Final Decision: The court allowed the appeal, set aside the conviction and sentence, and acquitted the appellants.
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.
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 enclose
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