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2020 Supreme(All) 456
IN THE HIGH COURT OF ALLAHABAD
Pradeep Kumar Srivastava, J.
Ram Charan Jatav – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. - 733 of 2013
Decided On : 30-04-2020
Advocate Appeared:
For the Appellant : Meraj Ahmad Khan, Arvind K. Pandey, Jai Prakash Prasad, Manish Kumar Pandey, Mirza Ali Zulfaqar, Vichitra Kumar Chandel
Point of Law:
Statement of police witness cannot be discarded only because of his being a police and if his statement is trustworthy, conviction can be based.
Headnote:
NDPS Act – Section 18/20, Sections 50 and 57 – Search and Seizer of Contraband – Appeal against conviction – Non compliance of provision of Sections 50 and 57 of the NDPS Act – Held, search team did not comply with the mandatory provision of section 42 of NDPS Act;the recovered drug was not weighted and on the basis of guess work the quantity was mentioned; the recovery was made from the house of appellant in the midnight without obtaining warrant from magistrate and without recording grounds of belief as required under the Proviso of section 42 and the legal procedure in preparing the recovery memo was not followed and the signature of the accused was not obtained after preparing the same – impugned judgement convicting and sentencing the accused is not sustainable under law and is liable to be set aside – Appeal allowed
Facts of the Case:
On 1.2.2002 Sub Inspector K.P. Sharma (Incharge SOG), J.P. Nagar with constable Rajendra Singh, constable Jai Prakash, constable Abhimanyu, constable Laxman Singh and constable driver Harender Singh, on the basis of information received from arrested accused Ram Kunwar Verma from Gandhi Murti Tiraha with brown sugar and on his information expecting recovery of brown sugar from the house of Ram Charan Jatav resident of Jai Om Nagar, Amroha went near Madho Cinema
Finding of the Court:
Search team didnot comply with the mandatory provision of section 42 of NDPS Act;the recovered drug was not weighted and on the basis of guess work the quantity was mentioned; the recovery was made from the house of appellant in the midnight without obtaining warrant from magistrate and without recording grounds of belief as required under the Proviso of section 42 and the legal procedure in preparing the recovery memo was not followed and the signature of the accused was not obtained after preparing the same – impugned judgement convicting and sentencing the accused is not sustainable under law and is liable to be set aside
Result: Appeal allowed
JUDGMENT :
1. Heard Sri Jai Prakash Prasad, Advocate learned counsel for the appellant and Sri Ravi Kant Kushwaha, learned AGA for the State.
2. This criminal appeal has been filed against the impugned judgment dated 16.1.2013 passed by Additional Sessions Judge, Court No.3, Jyotibha Phule Nagar in ST No.256 of 2002, Crime No. 62 of 2002, Police Station Amroha Nagar, District J.P. Nagar, by which the accused-appellant Ram Charan Jatav has been convicted and sentenced under Section 18/20 of NDPS Act for 10 years RI and Rs. 1,00,000/- fine and in default for additional one year imprisonment.
3. The brief prosecution case is that on 1.2.2002 Sub Inspector K.P. Sharma (Incharge SOG), J.P. Nagar with constable Rajendra Singh, constable Jai Prakash, constable Abhimanyu, constable Laxman Singh and constable driver Harender Singh, on the basis of information received from arrested accused Ram Kunwar Verma from Gandhi Murti Tiraha with brown sugar and on his information expecting recovery of brown sugar from the house of Ram Charan Jatav resident of Jai Om Nagar, Amroha went near Madho Cinema. There, In-charge Inspector Ram Bachan Singh, SI Jitendra Singh, constable Gul Haider Jaidi, constable Paramjeet Singh with constable driver Sabban Khan met on their Government jeep. The police party tried to search out some public witness but it was night and no witness could be traced. The police party conducted search of each other to ensure that they are not carrying any illegal narcotics substance. They tried to inform the Gazetted Officer, but, they could not contact him. Along with accused Ram Kunwar, the police party reached the house of Ram Charan Jatav at about 12:30 in the mid night, Accused Ram Kunwar knocked the door and the door was opened by a person. Accused Ram Kunwar said that he is Ram Charan Jatav from whom he purchased brown sugar. On being asked, the person disclosed his name to be Ram Charan Jatav son of Sukhi Singh resident of Jai Om, Police Station Amroha Nagar. On being asked he said that he had given 100 gram brown sugar for selling the same and he is having about half kg of brown sugar in his possession. He was asked whether he would like to be searched before any Gazetted Officer or the Magistrate whereupon he responded that he believed on the police party and permitted search. Instead, he said that he would himself give the brown sugar and he picked out about 500 gm brown sugar packed in a polythene from a black colour bag, which was hanging on the wall. The police personnel opened the same and smelled the same and found it to be brown sugar and the same was taken into possession by the police. In the light of torch, 50 gm of brown sugar was picked out from the recovered brown sugar as sample and was kept in polythene packet. The samples and remaining brown sugar was separately kept in a plastic packet and was sealed in white cloth and samples seal was pasted. Accused Ram Charan Jatav was asked about the person he obtained brown sugar and he informed that he obtained brown sugar from Tika Ram, resident of Jabdi and Rehan resident of Katkui, Amroha. He also told that they are still in possession of more brown sugar which they have kept in their house. He offered that he can show their house. The accused Ram Charan Jatav was informed about the offence he committed and was taken into custody. The recovery memo was prepared in the light of torch and after reading and hearing the same, the signature of the police personnel was obtained and a copy thereof was given to the accused. On the basis of the recovery memo, on 1.2.2002 at 3:30 AM, offence against accused Ram Charan Jatav was registered under the aforesaid section, chik was prepared and entry thereof was made in the GD. The offence was investigated by the police and Investigating Officer M.P. Tyagi recorded the statements of the witnesses, prepared site plan of place of recovery and after obtaining the report from the Forensic Science Laboratory, on the basis of evidenc
