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Sajjan Murav @ Sahu @ Sajiwan v. State Of U.P. - CRIMINAL APPEAL No. 5416 of 2004  RD-AH 3313 (21 September 2005)
Criminal Appeal No.5416 of 2004
Sajjan Murav @ Sahu @ Sajiwan .......... Appellant
State of U.P. ........... Opposite Party
Hon'ble R.C. Deepak, J.
The accused-appellant Sajjan Murav @ Sahu @ Sajiwan has been convicted and sentenced under Section 20 (b) (ii) (c) N.D.P.S. Act pertaining to police station Mohana, district Siddharth Nagar. He has filed the present appeal after his conviction and sentence and has made a prayer to be released on bail during the pendency of his appeal.
The appeal was admitted on 01.11.2004 and the trial court record was called for. After the receipt of the record, the prayer for bail is heard and disposed of.
Heard Sri Vivek Prasad Mathur, learned counsel for the accused-appellant, learned A.G.A. for the State and perused the judgment.
Learned counsel for the accused-appellant has vehemently argued that the appellant is the resident of State of Nepal. His house is situated at a distance of 6 kilometers from the alleged place of occurrence. There was the active movement of the maoists in Nepal, that in order to earn livelihood, the appellant had some business of food grian at Kakrahwa within the limit of police station Mohana, district Siddharth Nagar. The local police used to extract illegal money to permit such business. The appellant also satisfied the local police, but one or other occasion he failed to do so, that in order to teach a lesson, the Sub-Inspector Sadanand Singh, the incharge of the police outpost / the informant falsely implicated the appellant in the present case. In support of his contention he has drawn the attention of the Court towards the statement of Virendra Nath Shukla (D.W.1).
The further contention of the learned counsel for the accused-appellant is that there are contradictions in the recovery memo and the evidence on record with regard to recovery of Charas. The recovery memo indicates that Charas in 8 pieces was recovered from a white plastic bag. The words and sentences with regard to the recovery memo to this effect are reproduced as under :
"Eak plastic ki thaili dahene haath mein latkaye huye aa raha tha. Talashi lene per uske dahene haath mein liye huye plastic ki thaili barang safed mein rakhi hui 8 adad plate numa charas barang kala baramad hui .........."
When the substance was produced before the court, it was found that each piece was covered with separate polythene and there was no white plastic bag. Learned counsel for the accused-appellant has drawn the attention of the Court towards the statement of constable Suresh Chandra Singh (P.W.2). His statement indicates that at the time of arrest of the appellant nothing was seen with him. He was taken to the police station where a search was made upon him. The relevant portion of his statement is reproduced as under :
Gaandabandi wale sthan se 5 - 10 kadam ki doori per pakda gaya tha. Jab pakda gaya tha, to uske paas kuch bhi nahin dekhe the. Mulzim ko pakad ke thane par laye the. Thane per mulzim ki talashi lee gayi ............"
The search upon the appellant ought to have been made before the gazetted officer or the magistrate as per provision of Section 50 of N.D.P.S. Act, but this was not done so. No letter of consent was obtained from the appellant to show his willingness to be searched by the arresting party.
The record indicates that a representative sample of 50 grams Charas alleged to have been taken from the recovered substance, but not from the remaining pieces. There is no evidence on record to show that the signature of the appellant was obtained on the packet of such representative sample to indicate that the sample was taken from the substance so recovered. Since no representative sample from remaining 7 pieces was taken, that there is no evidence to show that the remaining pieces were also Charas.
On the basis of these facts and circumstances, learned counsel for the accused-appellant has concluded expressing that the recovery of Charas so made from the accused-appellant is false and a planned recovery and this is why no public witness came forward to support the prosecution case.
Considering the arguments of the learned counsel for the parties and the evidence on record, but without expressing any opinion on the merit of the case at this stage, I am of the opinion that the accused-appellant has made out a case for bail.
Appellant Sajjan Murav @ Sahu @ Sajiwan convicted under Section 20 (b) (ii) (c) N.D.P.S. Act in Sessions Trial No.41 of 2003 shall be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Court concerned.
The realisation of fine imposed upon the appellant shall also remain stayed during the pendency of his appeal before this Hon'ble Court.
Dated : 21st, September, 2005.
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