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2010 Supreme(UK) 650
2010 (3) UC 1669
IN THE HIGH COURT OF UTTARAKHAND
DHARAM VEER, J.
Amit Kumar
Versus
The State
(1) CRIMINAL APPEAL NO.940 OF 2001
(OLD NO.1156 of 1999), 939 OF 2001 (OLD NO.1138 of 1999)
Decided On: tember 23, 2010
Sri S.K. Aggarwal, Senior Advocate assisted by Sri Rajendra Singh, Advocate for the appellant Amit Kumar (CRLA No.940/01)
Km. Vijay Laxmi, learned amicus curiae for the appellant Gazbi (CRLA No.1138/99)
Sri TC Aggarwal, Additional G.A. for the State/respondent
The main legal point established in the judgment is the requirement for the prosecution to prove the case beyond reasonable doubt, including the need for link evidence, compliance with storage and handling procedures, and adherence to statutory provisions such as Section 57 of the Act.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Conviction under Section 8/20 of the Act - [Cr.P.C.] - [Section 374(2)] - [Narcotic Drugs and Psychotropic Substances Act, 1985] - [8, 20] - The court discussed the evidence and legal propositions related to the prosecution's failure to prove the case beyond reasonable doubt, including the lack of link evidence, non-compliance with storage and handling procedures, and absence of public witnesses. The court cited relevant judgments to support the appellants' arguments and ultimately acquitted the accused due to the prosecution's failure to prove the case beyond reasonable doubt.
Fact of the Case:
The appellants were convicted under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possessing Charas. The prosecution's case was based on the recovery of Charas from the appellants during a police check of a bus. The prosecution presented witnesses and evidence to support the charges.
Finding of the Court:
The court found that the prosecution failed to prove the case against the appellants beyond reasonable doubt. It highlighted the lack of link evidence, non-compliance with storage and handling procedures, absence of public witnesses, and non-compliance with Section 57 of the Act.
Issues: The key issues included the sufficiency of evidence to prove the case beyond reasonable doubt, compliance with storage and handling procedures, presence of public witnesses, and compliance with Section 57 of the Act.
Ratio Decidendi: The court's decision was based on the prosecution's failure to provide sufficient evidence, including link evidence, and non-compliance with storage and handling procedures and Section 57 of the Act, leading to the acquittal of the accused.
Final Decision: The court acquitted both appellants/accused and set aside the judgment and order convicting them under Section 8/20 of the Act. The appellants were not required to surrender, and their bail bonds were cancelled and sureties discharged.
HON’BLE DHARAM VEER, J.
Since the above said appeals have arisen out of a common judgment and order and the controversy to be decided is also common, as such both are being disposed of by this common judgment and order.
2. Both these appeals, preferred by the appellants under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as ‘Cr.P.C.’), are directed against the common judgment and order dated 11/12.5.1999 passed by the Additional Sessions Judge [Uttarakhand Cases], Dehradun in Special ST No.10/97, State Vs. Amit Kumar and Special ST No.11/97, State Vs. Gazbi, thereby convicting and sentencing each of the appellant/accused u/s 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) to undergo rigorous imprisonment for a period of 10 years each along with fine of Rs.1,00,000/- each and in case of default in the payment of fine, the defaulter was directed to undergo further two years’ R.I.
3. Heard learned Counsel for the parties and perused the entire material available on record.
4. In brief, the prosecution case is that on 9.12.1996 at about 8:00 P.M., P.W.1 S.I. Sudhir Kumar along with P.W.2 Constable Subhash Singh and other police officials checked the Roadways Bus No.UP15-7085 and on being suspicious, when the appellants/accused were checked, both of them were found carrying bags between their legs in which Charas was there. It was also stated that the appellants-accused were asked to be searched before a Gazetted Officer but they told the police personnel that they had faith on them and they might search them. Thereafter the scales were called and from the search of appellant/accused Amit, 825 grams Charas and on the search of the appellant/accused Gazbi 575 grams of Charas was said to be recovered. The recovered Charas was sealed on the spot and two separate Namoonas, 20 grams each, from the respective contraband were also prepared. Fard of recovery Ex.Ka-1 and Fard of scales and weighing scales Ex.Ka-2 were also prepared on the spot. Along with the recovered article, the appellants-accused were taken to the Police Station, Clement Town, Dehradun where Chik FIR was prepared on the basis of recovery memo on 09.12.1996 at 11:00 P.M. by H.M. Devendra Singh, that Chik FIR is Ex.Ka.11. In the same process entry was also made in the GD, carbon copy whereof is Ex.Ka-12. Investigation of this case was entrusted to PW7 S.I. L.P. Kashyap, who during the course of investigation inspected the place of occurrence and prepared the site plan of the place of occurrence, which is Ex.Ka-15. The recovered Charas was also sent for the chemical examination and the separate reports given by Joint Director, Scientific Laboratory, Agra are Ex.Ka-7 and Ka-8 respectively in respect of the appellants Amit Kumar and Gazbi. During investigation, the I.O. recorded the statements of witnesses and on completion of investigation, he filed the charge sheets against the appellant-accused Gazbi Ex.Ka-16 and against the appellant Amit Kumar Ex.Ka-17 in the court.
5. On 14.5.1997, learned Additional Sessions Judge [Uttarakhand Cases], Dehradun framed the charge for the offence punishable under Section 8/20 of the Act against both the appellants/accused. The charge was read over and explained to each of the appellant/ accused, to which they pleaded not guilty and claimed to be tried.
6. To prove its case, the prosecution has examined PW1 S.I. Sudhir Singh, witness of recovery, P.W.2 H.C. Subhash Singh, also witness of recovery, PW3 Dr. OP Taneja, Joint Director, Chemical Laboratory, Agra, who has given the expert report, PW3A Ram Kumar S/o Ram Rich Pal Singh, conductor of Bus, PW4 Constable Satish Kumar, who took the recovered contraband for chemical examination, PW5 H.C. Devendra Singh, who prepared CHIK FIR and made entry in the GD, PW6 Ram Kumar S/o Hari Ram, driver of the Bus and PW7 SI Lal Man Kashyap, IO of the case.
7. Thereafter, the statements of the appellants/ a
