Dismissed

Vineet Kumar Pandey v. State of U.P.

Allahabad HC11 Jul 2018CRLA/1856/2014

Case brief

AI extract

What is this about?

Appeal against conviction and 10-year sentence for narcotic possession. The High Court upheld the trial court's finding, rejecting claims of fake recovery. It held that Section 50 compliance was met via consent letters and that the sheer volume of drugs refuted allegations of police faking. Appeals dismissed.

What did the court decide?

Conviction and sentence affirmed; appeals dismissed; appellants to suffer entire terms.

Vineet Kumar Pandey Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2018)

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Reserved

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Case :- CRIMINAL APPEAL No. - 1856 of 2014 A.F.R. Appellant :- Vineet Kumar Pandey Respondent :- State Of U.P. Counsel for Appellant :- R.K. Mishra,Ajay Kumar Srivastava, Anand Priya Singh, Niranjan Lal Agrawal, Rabindra Nath Yadav, Radhey Shyam Yadav Counsel for Respondent :- Govt. Advocate

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Connected with

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Case :- CRIMINAL APPEAL No. - 1561 of 2014 Appellant :- Vishnu Tiwawri Respondent :- State Of U.P. Counsel for Appellant :- Jai Raj Singh Tomar, Kavita Tomar Counsel for Respondent :- Govt. Advocate

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With

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Case :- CRIMINAL APPEAL No. - 2143 of 2014 Appellant :- Amol Singh Respondent :- State Of U.P. Counsel for Appellant :- Vineeta Pandey, Chandrachud Pandey Counsel for Respondent :- Govt. Advocate

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Hon'ble Arvind Kumar Mishra-I,J.

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The aforesaid criminal appeals arose out of the one and the same judgment and order of conviction dated 29.3.2010 passed by the court of Additional Session Judge, Court No. 24, Kanpur Nagar in the concerned Sessions Trial Nos. 1730 of 2008-State Vs. Vineet Kumar Pandey, concerning Case Crime No. 906 of 2008, Sessions Trial No. 1731 of 2008-State Vs. Vishnu Tiwari, concerning Case Crime No. 907 of 2008 and Sessions Trial No.1729 of 2008-State Vs. Amol Singh, concerning Case Crime No. 908 of 2008, each under Section 18/20 N.D.P.S. Act within Police Station Chakeri, District Kanpur Nagar, whereby each of the aforesaid appellants after being convicted under Section 20(B) (II)(B) has been sentenced under Section 18/20 N.D.P.S. Act to ten years Rigorous Imprisonment coupled with fine Rs. one lakh each with default stipulation to suffer additional six

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months Rigorous Imprisonment.

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Heard learned counsel for the appellants and Sri Om Narain Tripathi, learned A.G.A-I assisted by Sri Subhash Chandra Dwivedi, Brief Holder, for the State in all the above three connected criminal appeals and perused the record.

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Course of events leading up to this stage (appeal) as discernible from record, appears to be that a police party initially headed by S.I. Rishikant Shukla SOG Incharge including other police personnel were busy in patrolling in the night of 30.8.2008 and in the meanwhile, the aforesaid police party headed by S.I. Rishikant Shukla arrived at KDA crossing within the region of Police Station Chakeri and met with SHO Chakeri Sri Krishna Gopal Sharma alongwith other police personnel and after interaction with them, the police party started checking vehicles and for suspected persons. After sometime, three persons riding on a motorcycle coming from J.K.-I crossing were seen by the police. After seeing the police party, these persons got fluttered and suddenly tried to turn back the motorcycle but they fell down in the process. The police on being suspicious, surrounded these persons after chasing them to a distance of 30 paces from KDA crossing and apprehended them at 1.30 A.M. On being asked as to why they were fleeing away, they told that they were possessing contraband Charas. Upon such disclosure, the SOG Incharge S.I. Rishikant Shukla asked them if they wish to be searched either before any gazetted officer or a Magistrate then all the three accused said to him that they trust him, therefore, he may carry out search and they do not want to go to any other place. At this, consenting letters (Ext. Ka-1,

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Ext. Ka-2 and Ext. Ka-3) of each of the accused were prepared and endorsement of each of the accused was obtained on it. The police party after making their own search with each other, confirmed that they do not possess any illegal material and took three accused in confidence. It has been described in the arrest and recovery memo that it being night, public witnesses were not available. The SOG Incharge asked the person/accused who was driving the motorcycle and inquired of him, whereupon he spelled his name as Vineet Kumar Pandey, son of Shrikant, resident of village Behta, Police Station Shivli, District Kanpur Dehat and six polythene packets wherein some substance resembling Charas were recovered from a bag dangling on his shoulder. On being interrogated, the second person spelled his name Vishnu Tiwari, son of Rajendra Prakash, resident of Village Bheempur, Police Station Shivli, Kanpur Dehat and on search being made, 19 polythene packets wherein some substance resembling Charas was recovered from a bag gripped by him in his right hand. Besides, Rs. 200/- cash was also recovered from the pocket of his shirt. On interrogation with the third person, he named himself Amol Singh, son of Sahab Singh Chandel, resident of Village Behta, Police Station Shivli, Kanpur Dehat and on being searched, 34 polythene packets wherein also substance resembling Charas was recovered besides recovering Rs.300/- cash from the left pocket of his trouser.

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S.I. Devendra Singh in the meanwhile, conducted search of motorcycle No. UP 77-D-5612 Bajaj XCD-125, whereupon a weighing scale alongwith weights in the quantity of one Kg, 500 grams, 200 grams, 100 grams and 50 grams were recovered from the wallet attached to

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the motorcycle. Driver Vineet Kumar Pandey was asked about papers of the vehicle whereupon he could not show any document. All the packets recovered from the aforesaid three accused were kept opened and on smelling the same they smelt Charas like substance. All the three accused were asked to show the authority to keep the illicit contraband/substances whereupon they told that they were carrying Charas from Barabanki after getting it from an unknown person. They were going to sell the same when the police party caught them. They apologized for their misdeed.

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In the opinion of the police party and the informant, this act was found to be in violation of Section 18/20 of the N.D.P.S. Act, therefore, after complying the various mandatory provisions and directions as required under law, the aforesaid three appellants after being explained the cause of their respective arrest were taken into custody. The police party recovered six packets weighing approximately 2 Kg. substance from the accused Vineet Kumar Pandey. Similarly 6 Kg. substance in 19 packets was recovered from the possession of accused Vishnu Tiwari and 10 Kg. substance was recovered in 34 packets from the possession of accused Amol Singh. Three separate samples were prepared on the spot each weighing 100 grams after little quantity of substance was taken out from each of the packets recovered from the accused. The rest of the substance was kept in the respective bags of the accused. Specimen seal was prepared and the weighing scale and the weights were kept in the wallet attached to the motorcycle and was sealed in a cloth. Specimen seal was prepared and the motorcycle was also challaned under Section 207 of the Motor Vehicles Act. The memo of arrest and recovery

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was got prepared by S.I. Shaym Pratap Patel in the electric and torch light and contents of the memo of arrest and recovery was read over to all the accused and the witnesses and signatures/endorsements of the accused and the police personnel were obtained on it. The information of arrest was given from police station. The recovered cash was also kept under seal. Copy of this memo was given to Amol Singh with the consent of all the accused and signature of the accused was also obtained on it. This memo is the written report of this case, which is Ext. Ka-4. The contents of the aforesaid memo were noted down and taken against each of the aforesaid accused in the concerned check F.I.R. (Ext. Ka-5), at Police Station Chakeri, Kanpur Nagar on 30.8.2008 at 3.45 A.M. at Case Crime Nos. 906 of 2008, 907 of 2008 and 908 of 2008, under Section 18/20 N.D.P.S. Act against Vineet Kumar Pandey, Vishnu Tiwari and Amol Singh, respectively, and relevant entries were made in the concerned General Diary Rapat No. 11 at 3.45 (A.M.) at the aforesaid police station, at the aforesaid date and time and case was registered against the accused under the aforesaid case crime numbers. Information of the incident was given to the higher officers vide G.D. entry serial No. 11 at 3.45 on 30.8.2008. The copy of General Diary is Ext. Ka-6. The recovered substance/article was kept in Malkhana.

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Record further reflects that the aforesaid recovered substance/contraband was sent to the public analyst by order of the Chief Metropolitan Magistrate, Kanpur Nagar vide Annexure-Ka-6A and Ext. Ka-7 respectively, and analyst's report pertaining to the substance recovered from the accused Vineet Kumar Pandey concerning Case Crime No. 906 of 2008 dated 23.8.2008 is Ext. Ka-

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Similarly, analyst's report concerning Case Crime No. 907 of 2008 pertaining to accused Vishnu Tiwari dated 23.8.2008 is Ext. Ka-14 and analyst's report in the matter of substance recovered from the accused Amol Singh concerning Case Crime No. 908 of 2008 is Ext. Ka-15. The analyst opined that the substance examined is Charas.

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The record reflects that the investigation was under way and the same was taken over by PW-6 S.I. Satyendra Singh Rathore who besides recording statement of the informant S.I. Rishikant Shukla PW-3 and other police personnel, prepared site plan of the place of arrest and recovery at the instance of the informant, which is Ext. Ka-9. The I.O. facilitated sending of the samples for chemical examination and after completing investigation, filed charge sheet against each of the aforesaid accused, which charge sheets are Ext. Ka-10, Ext. Ka-11 and Ext. Ka-12 respectively.

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Consequently, cognizance of the offence was taken by the Sessions Judge, Kanpur Nagar vide its order dated 5.11.2008. Thereafter, this case was made over for conduction and disposal of trial to the aforesaid court of Additional Session Judge, Court No. 24, Kanpur Nagar, who on being seized of the fact that the cases of the three accused are in shape of three different case crime numbers arising out of the one and the same incident at the same place and time, consolidated all the aforesaid session trials into one and making Session Trial No. 1730 of 2008-State Vs. Vineet Kumar Pandey to be the leading case. All the evidence was accordingly taken by him.

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In turn, the aforesaid trial judge heard each of the

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aforesaid accused on the point of charge and after being prima facie satisfied with the case against the accused, framed charge under Section 20(B) (II) (B) N.D.P.S. Act. Charge was read over and explained to the accused who abjured the charge and opted for trial.

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In order to prove its case, prosecution produced in all six witnesses. A brief reference of the witnesses is sketched as herein:-

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S.I. Shyam Pratap Patel was one of the police personnel, who met the informant at KDA crossing. He is witness of fact of arrest and recovery from the accused. PW-2 constable Shiv Ram Pal noted relevant contents in the concerned check F.I.R. and the General Diary. S.I. Rishikant Shukla PW-3 is the informant. He has proved the fact of preparation of consenting letters being obtained from all the three accused, which are Ext. Ka-1, Ext. Ka-2 and Ext. Ka-3. Constable Awadhesh Chandra PW-4 has conveyed the three samples to the Forensic Science Laboratory and has proved the same as Ext. Ka-5, Ext. Ka-6 and Ext. Ka-7. PW-5 Head Moharrir Kamlesh Singh has proved copy of Malkhana Register Ext. Ka-8. PW-6 Satyendra Singh Rathore is the investigating officer. He has detailed about the various steps he took in completing the investigation of the case. He has proved filing of charge sheets Ext. Ka-10, Ext. Ka-11 and Ext. Ka-12 besides proving various papers.

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Thereafter evidence for prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C. wherein they have counted various reasons for their false implication primarily on the ground of enmity and claimed themselves to be innocent. In their respective statements, each accused has given his own

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description in the shape and form which need little reference. The accused Vineet Kumar Pandey has stated in his statement that he was arrested on 30.8.2008 from his home by the police of Police Station Chakeri. Nothing incriminating was recovered from his possession. The arrest and recovery is fake. More or less, similar statement was given by another accused Vishnu Tiwari that he was called by the police of Police Station Chakeri around 8.30 P.M. on 28.8.2008 from his house and he was detained illegally at the police station and was involved in this case on 30.8.2008 after showing fake recovery from him. Nothing incriminating has been recovered from him. Amol Singh has stated that he was coming back from Unnao to his home at Village Behta, Police Station Shivli, Ramabai Nagar in the night of 30.8.2008 around 10.00 P.M. on motorcycle when he was intercepted by the police at KDA crossing. He was asked about original papers of the vehicle but he was having only photostat copies of the original papers. He was threatened by the police and was asked to be a witness in a case concerning some Charas and was offered immunity and was told that his motorcycle will not be seized. When offer was refused, he was falsely implicated in this case. Nothing incriminating was recovered from his possession. All the three accused wished to lead evidence in defence but no evidence, whatsoever, was given on their behalf.

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Therefore, evidence for the defence was closed. Arguments for both the sides were heard and after appraisal of facts and circumstances and evaluating evidence of the case recorded conviction against each of the accused and sentenced each of the accused to 10 years Rigorous Imprisonment coupled with fine Rs. one

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Lakh with default stipulation to suffer additional six months Rigorous Imprisonment for the offence.

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Learned counsel for the appellants has vehemently contended that in this case, the claim made by the informant S.I. Rishikant Shukla and the other police personnel that the appellants were caught on 30.8.2008 at 1.30 A.M. somewhere at a distance of 30 paces away from KDA crossing in Kanpur Nagar is absolutely false and baseless. No act of actual arrest and seizure ever took place but the fact is that the police being guided by whim and arrogance and for the reasons best known to it, took two of the appellants from their respective homes and one of the appellants, who was coming back to his home on motorcycle, was asked for original papers of his motorcycle whereupon he showed photocopies of the papers of the vehicle, due to which the police personnel asked him to be a witness in some case involving some narcotic substance which offer was refused by the appellants which became prime consideration for the police for falsely implicating the third appellant in this case. There is gross violation of provisions of Sections 50 and 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Each and every packet, which was allegedly recovered and seized, was kept in the bag but sample from each packet was not taken. There is no compliance of the mandatory provisions contained under Section 50 N.D.P.S. Act for carrying out search. No independent witness was availed. Though the appellants claim exoneration from the charge but for the sake of argument and assuming it to be that the offence was committed by the appellants then the sentence should be confined to six months period only. The sentence and fine awarded/imposed on the appellants by the trial court

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is illegal.

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In support of his contention, learned counsel for the appellants has placed reliance on three judgments in the cases of Dular Vs. State of U.P., 2013 Law Suit (All) 3326, Suresh and others Vs. State of Madhya Pradesh, 2012 Law Suit (SC) 766 and Jitendra Singh Rathore Vs. State of U.P., 2014 2 ADJ 424.

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While retorting to the aforesaid contentions, Sri Om Narain Tripathi, learned A.G.A.-I has submitted that in this case, very fact of huge recovery itself is self explanatory of fact that the police personnel cannot avail such easily such huge quantity of narcotic substance Charas. Principles and guidelines regarding huge quantity of recovery have been made by the Apex Court in the case of Aher Raja Khima Vs. State of Saurashtra, AIR 1956 SC 217.

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Not only this, piece of sample taken from the bag of each of the appellants was sent for chemical examination and the analyst's report confirmed the substance to be Charas. Not only this, the appellants after their apprehension also consented to the fact that their search can be made by the police personnel and they do not want themselves to be searched before any gazetted officer or Magistrate and these consenting letters have been proved as Ext. Ka-1, Ext. Ka-2 and Ext. Ka-3. Further, there was no whim or direct or indirect motive for the police to falsely implicate the appellants who are residents of Kanpur Dehat and to involve them in a case under the provisions of N.D.P.S. Act within police circle Chakeri falling in district Kanpur Nagar. Each and every aspect of the case has been duly proved.

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The trial court while appraising the facts and evaluating the evidence on record has recorded just finding of conviction and passed sentence condignly.

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I have also considered the rival submissions advanced by both the sides. In view of the rival contentions and claim made by both the sides, the moot point that arises for adjudication of this appeal, relates to the fact whether the prosecution has been able to prove the guilt of the appellants beyond reasonable doubt ?

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Bare perusal of the recovery and arresting memo Ext. Ka-4 dated 30.8.2008 is on the face reflective of certain facts that the police party led by the informant S.I. Rishikant Shukla, Incharge SOG, Kanpur Nagar and later on joined by Station Officer of Police Station Chakeri Sri Krishna Gupal Sharma alongwith other police personnel were checking vehicles and searching for suspected criminals around 1.30 A.M. when they caught the three appellants who came over there riding on a motorcycle being driven by the accused/appellant Vineet Kumar Pandey. On offer being made by the police to get them searched before a gazetted officer or a Magistrate, they expressed their desire to be searched by them and gave consenting letters and on search being made, Charas was recovered from the possession of each of the appellants. Six packets weighing 2 Kg. from the appellant Vineet Kumar Pandey, 19 packets weighing 6 Kg. from the appellant Vishnu Tiwari and 34 packets weighing 10 Kg. from the appellant Amol Singh were recovered and the substance recovered was found smelling like Charas. Certain formalities were gone into and samples from the recovered packets from each of the appellants approximately 100 grams in quantity were

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prepared on the spot and the recovered substance was kept under seal and specimen seal was impressed on the samples. Besides, some measurement instruments say weighing scale with weights of one Kg., 500 grams, 200 grams, 100 grams and 50 grams were also recovered from a bag attached to the wallet of the motorcycle. The same was also kept under seal. The appellants were arrested and brought at Police Station Chakeri where on the basis of aforesaid memo of seizure and arrest, a case was registered against each of the appellants at Police Station Chakeri vide check F.I.R. Ext. Ka-5, at 3.45 A.M. on 30.8.2008 at Case Crime No. 906 of 2008 against Vineet Kumar Pandey, at Case Crime No. 907 of 2008 against Vishnu Tiwari and at Case Crime No. 907 of 2008 against Amol Singh, each under Section 18/20 N.D.P.S. Act. Relevant entry was also noted in the concerned General Diary of the same date at Police Station Chakeri at the aforesaid time and at aforesaid case crime numbers against each of the appellants and information was given to the higher authorities. Thereafter the investigation ensued. The investigation was done by S.I. Satyendra Singh Rathore PW-6 who after recording statement of a number of persons, the informant and other police personnel facilitated for sending of the samples to the concerned Forensic Science Laboratory, Agra. Record further reveals that charge sheets against the appellants as Ext. Ka-10, Ext. Ka-11 and Ext. Ka-12. The prosecution got examined in all six witnesses out of whom two witnesses-the informant PW-3 and S.I. Shyam Pratap Patel are witnesses of fact and they have proved the factum of arrest and recovery of alleged narcotic substance terming it to be Charas and analyst's report in

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regard to samples collected from the packets recovered from the appellants has also been brought on record as Ext. Ka-13, Ext. Ka-14 and Ext. Ka-15, which report is dated 23.10.2008 and which innocuously substantiates the claim of the prosecution that the substance collected in the shape of samples and sent for chemical examination was Charas.

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Now the primary contention raised before this Court is confined to the ambit of violation of search provisions as contained under the N.D.P.S. Act and primarily Section 50 of the N.D.P.S. Act and contention that there was no independent witness to the factum of recovery and arrest. This contention is to be read conjointly with the statement of each of the appellant given specifically in answer to question put to them under Section 313 Cr.P.C. Two of the appellants stated that they were taken from their home and arrested and nothing incriminating was recovered from their possession and one of the appellants Amol Singh stated that he was intercepted by the police around 10.00 P.M. and was asked for original papers of his motorcycle but the said appellant was having only photostat copies of the papers of motorcycle. He further stated that when the police party insisted and asked him to be a witness in a narcotic case and he refused to be a witness then he was falsely implicated in this case. He has also disclaimed the recovery of any contraband from his possession. The contention of the learned counsel for the appellants can be cut short by observing that in the matter of search it was not a case of prior information to the police that some contraband in the shape of narcotic is being transported, conveyed or being possessed by the three appellants, therefore, the police party kept on

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waiting for the appellants and apprehended them. It was a case of sudden recovery when the police was checking vehicle and the recovery imputed is specifically confined to recovery from the bags in possession of each of the appellants and recovery is not from the person of the appellants, therefore, the parameter made for the search particularly of person as envisaged in Section 50 N.D.P.S. Act will be construed and understood according to the context it speaks of.

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Upon wholesome consideration and scrutiny of testimony of two prosecution witnesses, it can be observed that S.I. Shyam Pratap Patel PW-1 and S.I. Rishikant Shukla PW-3 who are witnesses of fact, have categorically stated that at the time when the appellants were apprehended and they disclosed fact that they are possessing Charas then they were offered liberty to get themselves searched in the presence of some gazetted officer or Magistrate whereupon they declined the offer and expressed their desire to be searched by them (the police personnel). In this regard, specific testimony has surfaced in the statement of SI. Shyam Pratap Patel PW1 that he prepared the consenting letters of each of the appellants and has proved the same as Ext. Ka-1, Ext. Ka-2 and Ext. Ka-3 apart from proving the fact of arrest of the accused effectuated around 1.30 A.M. on 30.8.2008. Their testimony on the whole is consistent clinching and inspires confidence. Nothing adverse of the nature has surfaced which may diminish or affect creditworthiness of these two witnesses.

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Now the point is that it being odd hours in the night, availability of independent or public witness was a remote possibility, therefore, absence of independent

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public or independent witness to the fact of arrest and recovery would not hamper the case of the prosecution. It may be observed that the police personnel were not under obligation to get the aforesaid compliance of search in view of the fact that the search was not of the person and no contraband or Charas was recovered from the person of the appellants but the recovery was effectuated from the bags of each of the appellants and contraband/narcotic of different quantity was recovered. Both the aforesaid prosecution witnesses of fact have proved the memo of arrest and recovery Ext. Ka-4 in the very manner in which the search was carried out, therefore, it can be summed up at this stage that there is no violation of mandatory provisions of search being made by the police personnel.

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In so far as the statement of each of the appellants under Section 313 Cr.P.C. is concerned regarding their explanation of false implication then it goes over comprehension as to how and whey the police party was interested in false implication of the appellants and such huge recovery exposes the claim of the appellants that the recovery is fake. The chemical analyst's report-Ext. Ka-13, Ext. Ka-14 and Ext.Ka-15 confirms the fact that the recovered material was Charas. Therefore, the essential ingredients in the nature of arrest and recovery of Charas from the possession of the appellants gets strengthened. Lodging of the F.I.R. at the relevant point of time at the police station has been duly proved by the constable Shiv Ram Pal PW-2. He has proved the check F.I.R. Ext. Ka-5 and General Diary entry at serial No. 11 at 3.45 A.M. at Police Station Chakeri at Case Crime Nos. 906 of 2008, 907 of 2008 and 908 of 2008, under Section 18/20 N.D.P.S. Act and registration of cases

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against the appellants. Nothing adverse comes out in the testimony of this (PW-2) prosecution witness which may adversely effect his credibility.

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In so far as the taking of sample from each packets of the recovered substance is concerned then testimony of PW-1 and PW-3 substantiates claim of the prosecution that small quantity of substance from each packet was taken which weighed 100 grams and the sample was duly sealed, brought and kept in safe custody in Malkhana and information of the incident was given on wireless to the higher authorities. The recovered substance and the samples were kept intact as the same were received at the police station in Malkhana (PW-2 page 35 of the paper book).

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The wholesome testimony of the prosecution witnesses of fact coupled with the testimony of formal prosecution witnesses gives credence to the prosecution case and evidence tendered sails on the principle of coherence, the witnesses are creditworthy. No malice or personal grudge on account of any specific reason has been imputed against the police party and it is settled principles of law that in the matters of huge recovery of material or narcotic substance like the present one the same cannot be termed to be either fake or arranged one for some ulterior motive. Not only this, but there are several cases in which the Hon'ble Apex Court has held that testimony of police personnel cannot be discarded merely on the ground that they are police personnel, but creditworthiness of their testimony is to be tested on the parameter as contained under the Indian Evidence Act. Defence had ample opportunity to cross examine all the prosecution witnesses and to come out specifically with

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their defence and to show that the two of the appellants were arrested from their respective homes and one of the appellants say Amol Singh was intercepted at 10.00 P.M. in the evening and was falsely implicated in this case. Assuming it to be that false recovery was imputed against the appellants then fair question is as to from where the police party managed 18 Kg. of Charas. On this point, there is no attendant circumstance perceptible in the case which may refer to the veracity of such claim. Therefore, the claim of fake arrest and false recovery cannot be accepted. The Investigating Officer has prepared the site plan Ext. Ka-9 and has proved it. At this stage, it can be observed that the Investigating Officer may have committed laches on certain aspects of his investigation say preparation of the site plan Ext. Ka-9 and the very places where each and every police personnel was present on the spot, was not indicated by specific mark then this aspect would be treated to be laches committed during course of investigation and would not substantially affect the case of the prosecution. The testimony of PW-1 and PW-3 virtually goes unimpeachable and it holds ground on solid rock. Once the factum of arrest and recovery is proved and the recovered material is found to be Charas after duly prepared samples were analysed by the analyst to be Charas then the appellants alone can explain as to how they account for the recovered Charas. There are contradictions in the testimony of the prosecution witnesses but the guiding parameter is that these contradictions are not material but are discovered to be of trivial nature, the same would not affect admissibility and credibility of the testimony of prosecution witnesses on the whole.

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The samples were sent for analysis after obtaining order from the court of Chief Metropolitan Magistrate, Kanpur Nagar. Process of safe conveyance has been elaborated before the trial court as Constable Awadhesh Chandra PW-4. His testimony inspires confidence and appears natural. Exhibit Ka-6A and Exhibit Ka-7 also mention name of constable as constable Awadhesh Chandra. It means he was the authorised custodian to take the sample from Malkhana of Police Station Chakeri to Agra for analysis.

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On careful scrutiny of testimony of Head Moharrir Kamlesh Singh PW-5, it is gathered that he produced the original Register from Malkhana of Police Station, Chakeri before the trial court and proved entry at serial No. 307 concerning General Diary entry No. 11 dated 30.8.2008 and the concerned Case Crime Nos. 906 of 2008, 907 of 2008 and 908 of 2008 whereby it was testified that the substance of specific weight was kept in the Malkhana and has proved the copy of the aforesaid Malkhana Register as Ext. Ka-8. There is nothing substantial in his entire testimony which may affect credibility of the fact that the recovered narcotic substance was not kept at Malkhana of Police Station Chakeri in safe custody.

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Aforesaid citation in refernece to the case of Dular Vs. State of U.P. (2013 Law Suit (All) 3326 referred herein above by the counsel for the appellants is not helpful to the appellants for the reason that in this case merit of conviction and sentence was upheld, whereas, the period prescribed for the accused to suffer additional imprisonment on account of default in payment of fine was reduced to the one period already undergone by the

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accused-Dular. Here in this case at hand the issue involved is altogether different.

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Further the case of Suresh and others Vs. State of Madhya Pradesh ( 2012 Law Suit (SC) 766) cited by the counsel for the appellants is not helpful because in that case the Hon'ble Apex Court has took note of mandate contained under Section 50 of the N.D.P.S. Act and held that this much would be substantive compliance if the searching officer asks the suspected whether he would like to be searched before a gazetted officer or a Magistrate. In this case, the Hon'ble Apex Court has taken note of the law laid down by the Constitutional Bench of the Supreme Court in the case of State of Punjab Vs. Baldev Singh, 1999 6 SCC 172 and judgment delivered by three Judges Bench of the Supreme Court in the case of Joseph Fernandey Vs. State of Goa 2000 1 SCC 707.

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Here, in this case in hand it has already been observed as established by tendering evidence before the trial court that the arrest and seizure memo is sufficiently indicative of fact that offer was given to the appellants if they wished to be searched in presence of the gazetted officer or a Magistrate prior to their search.

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In the aforesaid third case Jitendra Singh Rathore Vs. State of U.P. (Criminal Appeal No. 4509 of 2006 decided on 8^th January, 2014) there is nothing which may come to the rescue of the appellants because in that case the recovery of Charas was discovered to be doubtful on account of various reasons which aspects are not existing in the case in hand.

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The prosecution has successfully proved the guilt against each of the appellants for the charge under

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Section 20(B)(II)(B) of the N.D.P.S. Act and it is proved that quantity of Charas recovered from each of the appellants is commercial quantity. Therefore, the trial court was justified in basing the conviction of the appellants and awarding punishment for 10 years Rigorous Imprisonment coupled with fine Rs. one lakh each for the offence in question with default stipulation to suffer additional six months imprisonment.

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Consequently, the finding of conviction recorded by the trial court and the sentence awarded against the appellants in concerned Sessions Trial Nos. 1730 of 2008, 1731 of 2008 and 1729 of 2008, under Section 18/20 N.D.P.S. Act at Case Crime Nos. 906 of 2008, 907 of 2008 and 908 of 2008 respectively, for the charge, Police Station Chakeri, District Kanpur Nagar, against the appellants Vineet Kumar Pandey, Vishnu Tiwari and Amol Singh respectively, is hereby affirmed. In the result, all the aforesaid appeals fail and are, accordingly, dismissed.

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In this case, all the appellants are in jail. They shall suffer the entire sentence so awarded by the trial court.

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Let a copy of this order be certified to the trial court concerned for information and necessary follow up action.

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Date: 11.7.2018.

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Rmk.

Vineet Kumar Pandey v. State of U.P.

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Vineet Kumar Pandey v. State of U.P.

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