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Hansraj alias Hansu v. State - CRIMINAL APPEAL No. 3651 of 2002 [2005] RD-AH 7410 (13 December 2005)


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Criminal Jail Appeal No. 3651 of 2002

Hansraj alias Hansu Vs. State

Hon'ble Umeshwar Pandey, J.

In this jail appeal the judgment and order of conviction and sentence dated 21.11.2001 passed by the Special Judge (N.D.P.S. Act), Kanpur Nagar, has come under challenge.

The appellant during trial was charged for the offences punishable under Sections 18/20 N.D.P.S. Act (here-in-after referred to as the 'Act') and under Section 60 of Excise Act. The trial court on completion of the trial and on hearing the counsel for the appellant as well as the state counsel, found that the aforesaid offences were proved and he accordingly passed the impugned judgment convicting the appellant and sentencing him to rigorous imprisonment for a term of ten years and also to pay a fine of Rs. 1,00,000/- for the offence punishable under Section 20 (b) (ii) of the Act and one year rigorous imprisonment for the offence punishable under Section 60 of the Excise Act.

The brief facts of the case are that the Station House Officer, Naubasta police station, District Kanpur Nagar, received an information through a police informer, while he was on patrol duty in the city along with other police personnels, that the appellant accused along with one other was taking out liquor for illegal sale. The Station House Officer along with his staff and the informer proceeded immediately for the spot indicated where the accused could be available and on identification by the informer he arrested the appellant but his companion, however, taking advantage of the darkness, escaped. After arrest, the appellant disclosed his name as Hansraj @ Hansu and on interrogation he disclosed of having 300 grams of contraband charas in his pocket. Thereafter, he was offered of his search to be taken in presence of a gazetted officer or a Magistrate but he declined and told that his search could be taken by the Station House Officer, as he was already arrested. On formal search being taken, 300 grams of contraband charas was recovered from his trouser pocket. 2700 pouches of country made liquor was also recovered from out of 18 plastic bags, which were kept in the premises belonging to the accused. Accordingly, after this recovery, the recovery memo (Ext. Ka-1) was prepared a copy whereof was given to him. The entire contraband charas and the country made liquor kept in  2700 pouches were got sealed on the spot and necessary samples with specimen seal were also prepared then and there. Subsequent thereto the accused along with recovered articles was brought to the police station where the F.I.R. (Ext. Ka-3) was lodged on the basis of the recovery memo. The matter was investigated by another Sub-Inspector of the police station and charge sheets in both cases i.e under the Act and the Excise Act (Ext. Ka-5 and Ka-6) were filed.

The accused before the trial court did not plead guilty and denied the charges. The prosecution in the trial court examined three witnesses namely Sub-Inspector-Ram Chandra Misra  (P.W. 1), Sub-Inspector-P.C. Sharma (P.W. 2) Sankatha Singh, the Excise Inspector (P.W. 3) and Head Constable  Ram Naresh  (P.W. 4). Since the Investigating Officer had expired and had not come to the court for his evidence, the secondary evidence was given by S.I.-P.C. Sharma, who formally proved the documents prepared by the Investigating Officer. The prosecution also proved the documents Ext. Ka-1 to Ka-8, which include the recovery memo, chik F.I.R., copy of general diary, charge sheets, reports of the chemical examiner about contraband charas and the report of Excise Inspector about illicit liquor. The accused further did not prove any evidence documentary or oral before the trial court and stated that he had been falsely implicated in this case and he had nothing to do with the alleged contraband charas or liquor. He was simply a rickshaw puller, who was hired by another person for carrying those contraband.

Learned trial court, after having perused the entire evidence  available on record, was of the view that the offences with which the accused was charged, were fully proved beyond reasonable shadow of doubt and he accordingly convicted the appellant and sentenced him, as detailed above.

Aggrieved with the impugned judgment and order of conviction and sentence passed against him, the appellant preferred this appeal from jail. He still continues to remain behinds the bars in jail.

I have heard Sri Shishir Tandon, learned Amicus Curiae appointed in this case to assist the court and advance the cause of the appellant accused before it and the learned A.G.A. appearing for the respondent. I have also gone through the paper book and the entire original record received from the court below.

Sri Tandon, learned Amicus Curiae, has made precise submission in the defence of the appellant and has pointed out that there is no link evidence required to be given in such cases, as statutorily provided under Section 55 of the Act. He has tried to emphasise that but for the evidence of P.Ws. 1 and 2, who are the witnesses of recovery and preparation of recovery memo and subsequent lodging of the accused and the recovered contraband to the police station, there is no evidence given from the side of the prosecution about preservation of the alleged contraband and its subsequent transmission from the place of preservation to the laboratory for chemical analysis and it has rather failed to fully prove its case and as such there was no occasion to record an order of conviction against the appellant.

As regards the recovery, there is definite evidence of P.W. 1-S.I. Ram Chandra Mishra and P.W. 2-S.I. P.C. Sharma in whose presence the recovery is said to have been done. There is also reliable evidence given by these witnesses that the accused and the contraband were brought to the police station and lodged there. But as provided under Section 55 of the Act evidence has to be given by the prosecution with regard to the subsequent development in the case, which of-course takes place during the investigation only. Here, the investigation was not done by P.Ws. 1 and 2. It has been done by one S.I. Brij Raj Singh, who had died before his evidence could be recorded in the trial court and he has been replaced by P.W. 2-S.I. P.C. Sharma for giving such secondary evidence. The recovery officer (P.W. 2) while giving his evidence on this point, has stated nothing as to preservation to the recovered articles at the police station nor has stated about safe subsequent transmission of such sample of the contraband from the place of preservation to the laboratory for its test and chemical analysis. The analyst report of illicit liquor as well as the contraband drug (charas), though, have been proved on record, but nothing is disclosed from out of these documents as to how they were brought from the police station to the place of analysis and if those articles were the same, which had been recovered on the alleged date and time of recovery from the accused. The recovery is dated 17.7.1998 but there is nothing in the evidence of P.W. 2 as to on which date these articles were taken from police station for the analysis. The report of the chemical analyst of the laboratory at Lucknow about the contraband charas shows that the sealed packet was delivered to him on 22.8.1998 but who took and delivered it to the laboratory is nowhere in the report. Thus, the link evidence of such fact as required to be given under Section 55 of the Act is wholly missing. The only fact, which has come in the evidence of P.W. 2-P.C. Sharma, is that one Constable-Asharam had taken the articles to the laboratory at Lucknow through  docket (Ext. Ka-9 - Ka-10). This Constable-Asharam has not been produced by the prosecution. From the report of chemical analyst (Ext. Ka-8), it appears that it was received in the laboratory on 22.8.1998 whereas the recovery is said to have been done on 17.7.1998. That itself shows that the article was taken for chemical analysis after about a month and there being no connecting evidence as to what and why the preservation of the article was there with the police station or while it was being taken from the police station to the laboratory of the chemical analysis, is nowhere available in the prosecution evidence. The same position is with the analysis of the illicit liquor, which is said to have been done by the Excise Inspector to whom 149 pouches of liquor alleged to have been recovered were delivered by one Constable-Karam Chand in a sealed bag. Whether this article delivered to the Excise Inspector for analysis was the same, which was recovered from the accused appellant, is not properly established from this report. Both carriers of these articles namely Constable-Asharam and Constable-Karam Chand have not been produced by the prosecution before the court. The report of Excise Inspector is also dated 18.8.1998, which shows that the liquor for analysis was delivered to the Excise Inspector after about a month of the incident. For such a long duration the contraband had been preserved at the police station. There is no evidence on record as to show as to how and at what time and date this contraband was taken by the carriers for analysis. It was actually incumbent on the part of the prosecution to lead the evidence of fact as to how and in what conditions the articles were preserved at the police station and how safely they were taken from there to the respective chemical examiners by its carriers. To my great surprise, there is no such evidence made available on the record by the prosecution. In absence of these link evidence, it cannot be safely held that after the recovery of the alleged  contraband and drug it was properly preserved and kept in safe custody till it was taken to the respective chemical examiners for its analysis and test. It is also not certain from the report that the same article, which was recovered, was received for analysis in the laboratory at Lucknow or by the Excise Inspector (P.W. 3). It is not only a serious lapse on the part of the prosecution, rather it fatally damages its case. It is not believable in such circumstances that the said articles, which were seized from the  appellant accused, were actually analysed by the chemical analyst or the Excise Inspector. Though, there is no cross-examination worth the name with regard to this aspect of the matter with the prosecution witnesses but since no evidence was there, any cross examination was hardly warranted to be done with the witnesses examined in the trial court. The provisions of Section 55 of the Act requires the officer in-charge of the police station to take charge of such articles seized and delivered to him at the police station for onward processing of the same for sampling and then its analysis by Chemical Examiner.

Learned Amicus Curiae has further pointed out that in the present case there is no evidence on record to show that after the arrest and seizure of the contraband charas, no report, as provided under Section 57 of the Act, was prepared and sent by the recovery officer (P.W. 2) - P.C. Sharma, within 48 hours next after such recovery to his immediate official superior. In this context the only evidence, which the P.W. 2 has given before the trial court, is that he had sent information of this recovery to the higher officials but there is not a word in his entire statement as to what report and on which date did he send it to his higher officers. Mere one sentence statement that he informed his higher officers is not going to help in this context. The requirement of Section 57 of the Act makes it mandatory on the part of the person making arrest or seizure that he shall within 48 hours next after such arrest and seizure, make a full report of all the particulars of such arrest and seizure to his immediate official superior.  The statutory requirements of Section 57 of the Act, thus, cannot be held to have been properly and wholly complied with by the aforesaid one sentence stated in the trial court by the seizure officer (P.W. 2). Such sort of procedural error on the part of seizure officer has been held to be something, which might prejudice the accused and in that case it may also prove fatal to the frame of prosecution case. In this context reliance is placed upon a recently pronounced judgment of mine in Criminal Jail Appeal No. 3652 of 2002 dated 21.7.2005. The following paragraph  is reproduced herewith:-

"Hon'ble Apex Court in the case of Thandi Ram Vs. State of Haryana, 2000 S.C.C. (Cri.) 189, relying upon the aforesaid case of State of Punjab (supra), has found that in view of non compliance of the aforesaid Section 57 of the Act, the conviction recorded is bad in law. The Bombay High Court in case of Gangaram Rama Gundkar and another Vs. State of Maharashtr, 2002 Cri. L.J. 2578, has held that in order to give the proof about sending of report, as required under Section 42 (2) of the Act, the prosecution has to produce that report before the trial court and prove it and it has also to produce the evidence to the effect that the said report had actually reached the immediate official superior. In relation to Section 57 of the Act in the aforesaid judgment of Gangaram Rama Gundkar (supra), the court has further observed that by not submitting the full report, the accused appellant was deprived of testing the truthfulness of the evidence of arresting officer with reference to the report contemplated under the aforesaid Section 57 of the Act and to that extent, the appellant accused was prejudiced in making his defence."

In the aforesaid facts and circumstances, it appears that the trial court has not properly appreciated the evidence led before it from the side of the prosecution and has cursorily looked into the relevant aspect of the matter and without taking much pain, has jumped to a wrong conclusion for recording conviction of the appellant accused on the basis of recovery, which statutorily appears to be doubtful. Thus, the prosecution has failed to establish the guilt for the offences punishable under Sections 20 (b) (ii) N.D.P.S. Act and 60 of Excise Act against the appellant beyond reasonable shadow of doubt and he is entitled to be given the benefit of same and his appeal deserves to be allowed.

In result, the appeal is allowed and the judgment and order dated  21.11.2001 passed by the Special Judge (N.D.P.S. Act), Kanpur Nagar, is hereby set aside. The accused is not found guilty for the aforesaid offences and is acquitted for the same. He is languishing in jail and shall be released forthwith, if not wanted in any other case.

Office is directed to transmit the original record along with a copy of this judgment immediately to the trial court concerned, which shall issue release order of the appellant, as contemplated under law. A copy of this judgment be also transmitted to the Senior Superintendent, Central Jail, Fatehgarh, for information to the appellant-accused Hansraj @ Hansu.

Date:-        /12/2005



Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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