Allowed

Than Singh v. State of U.P.

Allahabad HC25 Jul 2018CRLA/2807/2013

Case brief

AI extract

What is this about?

On appeal against conviction under the N.D.P.S. Act for possession of Doda powder, the High Court acquittal the appellant. The Court held that the entire case was vitiated due to irregularities in sample handling, lack of authority in the sampling process, and non-compliance with mandatory procedural requirements of the Act.

What did the court decide?

Impugned judgment of conviction quashed; accused appellant acquitted and released forthwith unless wanted in another case.

Than Singh Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2018)

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AFR

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RESERVED

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Case :- CRIMINAL APPEAL No. - 2807 of 2013

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Appellant :- Than Singh
Respondent :- State Of U.P.
Counsel for Appellant :- Rahul Chaturvedi,Ambar
Khanna,Hemendra Pratap Singh,Neeraj
Srivastava,Raj Kumar Khanna
Counsel for Respondent :- Govt. Advocate

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Hon'ble Arvind Kumar Mishra-I,J.

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By way of instant appeal, challenge has been
made to the validity and sustainability of the
judgment and order of conviction dated 25.04.2013
passed by Additional Sessions Judge, Court No.10,
Mathura, in Special Session Trial No.119 of 2011
State Vs. Than Singh, arising out of Case Crime
No.164 of 2011 under Sections 15 (C) N.D.P.S.
Act, Police Station- Baldeo, District- Mathura,
whereby the accused-appellant has been sentenced

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to undergo ten years rigorous imprisonment
coupled with fine Rs.1,00,000/-, in default of
payment of fine, he will have to undergo
additional one year simple imprisonment.

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Facts relevant for adjudication of this
appeal are rooted in the arrest and recovery of
the appellant on 03.07.2011 effectuated by the
informant Sanjeev Kumar Tomar in company with his
police personnels of Police Station Baldeo,
District Mathura around 20:45 hours whereby 20
plastic bags/containers with 400kg. of Doda
powder were recovered from possession of the

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accused-appellant near Hanuman Temple within
vicinity of Village Akbargarhi. The place of
occurrence is stated to be 7 kilometers away from
Police Station. Report of the arrest and seizure
of the aforesaid substance was alleged at 23:50
hours the very same day on 03.07.2011 by the
informant Sanjeev Kumar Tomar with the
description that he along with Constable Vinod
Kumar, Constable Ajendra Singh, Constable Shiv
Pratap, Constable Arun Kumar, Constable Arvind
Kumar, Constable Nahar Singh departed for
patrolling by Government Jeep U.P. 85 AG 0151.
from Police Station vide G.D. No.37 at 20:05
hours in search of the wanted criminal. When they
reached near Hanuman Temple in the village
Akbargarhi they sighted the truck unloading some
containers having some substances inside it and
was being taken in a nearby room illuminated with
candle light where a person with balance
equipment, weight and measurement was weighing
the plastic containers and one man was conveying
containers from the truck to the nearby room and
one man was helping another man by pushing
plastic containers for it being shifted from the
truck to the room.

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As soon as the informant and the police
personnels asked about the reason for such doing
then - two persons – one who was conveying
plastic containers and the other using the
balance equipment in the room felt annoyed with
the sight of the police and escaped away from the
scene and in the process, one bag slipped out of

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the hand of the person who was using the balance
equipment inside the nearby room. On checking the
truck, one man was found inside the truck who on
being asked about his name, spelt his name - Than
Singh - resident of Village Akbargarhi, Police
Station Baldeo, District Mathura.

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On search being made, one knife was recovered
from his possession apart from that bag/wallet
whichhad slipped out of the hand of one of the
accused and was lying on the spot, was also
checkedwhereuponcurrencynotesworth
Rs.1,00,000/- of different denominations were
recovered by the police. As search proceeded, ten
containers each from the truck No. RJ 11 GA 1532
and the nearby room were recovered. On checking
and smelling the substance kept inside plastic
containers, it transpired that the same is
noxious Doda powder.

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It was told by accused-appellant Than Singh
that the person from whose hand the wallet / bag
slipped was Laxman who was weighing containers
inside the room and he (Laxman) is owner of the
truck and his associate was Chintu. Both Laxman
and Chintu run transport company by name A.K.
Transport at Mandi Crossing Mathura and the goods
belonged to them. It was also disclosed that
these goods were supplied at different hotels in
the State of Bihar and purchasers of these
substances usually come and purchase these
substances.

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The accused-appellant told that he is driver
of the truck, he usually supplies these

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substances to different owners. Laxman and Chintu
usually unload the truck in this room which is
used as a godown. He also disclosed that some
customers had purchased these substances shortly
before arrival of the police and they have left.
He further told that money/currency recovered
from the wallet is the sale price of
commodity/contraband. He also described the
substance to be Doda powder noxious substance and
apologized to the police for his act. Some silver
metal plates were kept inside the truck, document
regarding the same was in possession of the
accused-appellant.

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Since the recovery related to offence under
the Arms Act and N.D.P.S. Act, the accused-
appellant was asked whether he is interested in
his search being made in presence of a Magistrate
or a gazetted officer, whereupon he declined the
offer and reposed faith in the police party for
being searched. Memo of arrest and seizure was
made at 20:45 hours on 03.07.2011 and the
accused-appellant was taken into custody and the
plastic containers were weighed whereupon the
different weights were noted in relation to the
recovered containers. therein. The recovered
substance was kept under seal and the police
party also searched for the two escaped accused
Laxman and Chintu but could not find them. Memo
of arrest and recovery was prepared on the spot.
In the last line of this memo, it has been
described that a sample of 50 gram from each
recovered packet (numbering 20 in all) was taken

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out and sealed. This arrest and recovery memo is
Ext. Ka-1.

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The investigation took pace and the same
entrusted to B.L. Bharti PW-5 who in fact started
investigation on 16.07.2011 and in his absence,
some other S.I. took stock of the situation and
made relevant entry and progressed the
investigation up to 16.07.2011. PW-5 also
recorded statement of various prosecution
witnesses including the police party which
effectuated the arrest and recovery on
03.07.2011. He also prepared site plan Ext. Ka-7.
He has also proved fact that sample of 100 gram
was also sent to the analyst for chemical
examination. However, this aspect of the case is
inconsonance with the record of the entire case
on procedural point.

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During course of the investigation, PW-5 was
transferred, therefore, the investigation was
handed to another Investigating Officer, S.I.
Raghvendra Singh PW-6 who took over the
investigation on 09.08.2011. He has stated in his
examination in chief that previous Station House
Officer did nothing in the case. However, he took
note of the contents of the case diary and
chemical examination report Ext. Ka-9 was
received during his tenure as the Investigating
Officer. After completing the investigation, he
filed charge sheet Ext. Ka-10 against the
accused-appellant.

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Consequently, the accused-appellant was heard
on the point of charge whereupon he was charged

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under Section 20 (11) (C) N.D.P.S. Act besides
Section 15 (C) N.D.P.S. Act. Charges were read
over and explained to the accused-appellant who
abjured the charges and opted for trial.

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The prosecution, in order to prove guilt of
the accused examined as many as six witnesses, a
brief reference of them is as hereunder:

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S.I. Vinod Kumar PW-1 is witness of recovery
and arrest. Constable Chandra Prakash Pachauri
PW-2 has noted contents in the Check FIR and the
concerned general diary as Ext. Ka-3 and Ext. Ka-
4, respectively. Constable Arvind Singh PW-3 took
sample for chemical examination to the forensic
laboratory. He was also a member of the police
patrolling party and is also witness of fact.
S.I. Sanjeev Kumar Tomar PW-4 is the informant.
He headed the police party and effectuated the
recovery and arrest and prepared the memo of the
same as Ext. Ka-1. S.I. Bachchan Lal Bharti PW-5
has investigated part of the case pertaining to
the Arms Act and has filed charge sheet under the
Arms Act. Therefore, his testimony is of no
consequence for adjudication of this appeal at
this stage. However, he has also testified on
factual aspects of the case. S.I. Raghvendra
Singh PW-6 is the Investigating Officer who filed
charge sheet after completing the investigation
which was left over by the previous Investigating
Officer.

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Thereafter, evidence for the prosecution was
closed and statement of the accused was recorded
u/s 313 Cr.P.C., wherein, he has claimed to have

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been falsely implicated in this case and has
stated that he was not driver of truck No. RJ 11
GA 1532 but he was driver of truck No. M.P. 06
5582. Both these vehicles are owned by Laxman. On
02.07.2011, he left the owner of truck M.P. 06
5582 at his home and went to spread urea
fertilizers in the millet field. On 04.07.2011,
his master (truck owner) called him at Police
Station Baldeo and got him detained there.
Recovery was made from him. It is incorrect to
say that he was caught in the village Akbargarhi
along with truck No. RJ 11 GA 1532.

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No evidence, whatsoever, was led by the
defence.

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The learned Additional Sessions Judge, after
appraisal of facts and merit of the case and
evaluation of the evidence on record, returned
aforesaid finding of conviction under Sections 15
(C) N.D.P.S. Act and sentenced the appellant to
undergo ten years rigorous imprisonment coupled
with fine Rs.1,00,000/-, in default of payment of
fine, he will have to undergo additional one year
simple imprisonment

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Resultantly, this appeal.

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While assailing the various factual as well
as legal aspects of this case, learned counsel
for the appellant has engaged attention of this
Court to the part of the testimony of several
prosecution witnesses and claimed that sampling
process was not duly proved on the point that the
sample was correctly preserved according to the
Rules in some safe custody but the sample was

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manipulated by none other than the informant S.I.
Sanjeev Kumar Tomar PW-4 himself, who has
tampered with specific piece of testimony without
any authority and without any order of his
superiors or supervision of the higher authority
while he himself claimed to have separated 100
grams of substance from rest of the sample but he
neither made any entry in the case diary nor any
such reference was ever entered in any relevant
document. This particular factual aspect by
itself puts things in dark and the very veracity
and integrity of the sample sent for chemical
examination does not make out any case against
the accused-appellant notwithstanding the report
being that of Doda powder because very
authenticity of the sample sent clandestinely for
chemical examination was against the Rules and
provisions prescribed for preserving and sending
the sample were not followed.

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Apart from that, learned counsel for the
appellant has claimed that mandatory provision of
search under Section 50 of N.D.P.S. Act has not
been complied with. Testimony of the prosecution
witnesses is on the face of it contradictory to
the facts of the case. The trial court was not
justified in recording the finding of conviction
against the appellant and imposing the sentence
on him.

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Whileretorting to aforesaid contention,
learned AGA has submitted that in this case,
testimony of the prosecution witnesses inspires
confidence and there is no reason to disbelieve

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the same as that would amount to brushing aside
cogent testimony merely on some trifle lapse
procedural attributed to the Investigating
Officer. It is established law that mistake
committedduringinvestigationbythe
Investigating Officer would not amount to
throwing away the case of the prosecution.
Evidenceonrecordprofuselyindicates
involvement and complicity of the accused-
appellant in the occurrence. The trial court has
taken correct view of law and facts and has
justifiably recorded conviction against the
accused-appellant.

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Also considered the above submissions and
also considered claim of the accused-appellant.
Point for determination of this appeal, basically
relates to fact whether the prosecution has been
able to prove its case and particularly the
occurrence and consequently charge beyond all
reasonable doubt against the accused-appellant?

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Before scrutiny of legal and factual aspect
of the case on merits is entered, it would be
relevant to take stock of the situation leading
to arrest of the accused-appellant and consequent
recovery. It so happened that Sanjeev Kumar Tomar
PW-4 the informant was on patrolling duty on
03.07.2011. He suddenly noticed a stationary
truck parked near Hanuman Temple in the village
Akbargahi in the night around 20:45 hours and
also noticed movement of certain persons who were
working inside and around the truck. He noticed
movement of a person conveying plastic containers

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from truck to the adjoining room where one person
was weighing these plastic containers with
weighing equipment. One person was also pushing
plastic containers from truck to another person
who conveyed it to the nearby room.

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On being quizzed the person who was inside
the room and the person who was conveying plastic
containers escaped from the scene and in the
process one bag slipped out of the hand of that
person (fleeing from inside the room) which was
recovered by the police wherein currency notes of
various denominations worth Rs.1,00,000/- were
found. The substance kept inside the 20 plastic
containers was found to be noxious Doda powder on
smelling the same by the informant as well as the
other members of the police party.

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The seizure memo was also prepared on the
spot and 50 grams of sample was taken out from
each of the 20 containers. The search of the
accused was also made after he was suggested that
he may be searched in the presence of the
Magistrate or a gazette officer. The suggestion
was declined. However, he reposed faith in the
police for being searched. The entire case has
its base on arrest and recovery and the sampling
done on the spot.

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Now the point as reflected becomes
uncontrovertable to the ambit that the sample
which (1000 gms) was kept at the police station
was initially sent for chemical examination in
the first instance when the authorities concerned
at the laboratory directed the concerned police

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constable to take back the sample which was
weighing 1000 grams and instructed him to bring
the sample in the quantity of 100 grams only. At
this, the sample was returned to the police
station.

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It so happened that S.I. Sanjeev Kumar Tomar
PW-4 the informant - himself without any
authority, rhyme or reason took out 100 grams of
sample out of the previous sample and managed to
send it to the forensic laboratory. Not only this
PW-4 but also the other prosecution witnesses
were questioned on the point of any write up,
entry or note about this very activity of taking
out of 100 grams of sample from the original
sample then it transpires that no entry,
whatsoever, was ever made regarding this
clandestine activity. It means that the sample in
the quantity of 100 grams was taken out without
any authority neither in presence of any superior
officer nor in the presence of the Investigating
Officer. No entry was made in the case diary
regarding this process though the prosecution
witnesses have tried to do away with the
explanation. However, that explanation was
absolutely false and they are trying to save the
situation.

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The result is that the entire sample becomes
doubtful as to how it was preserved and in what
condition it was so preserved, how it was so
accessed by the informant and by what authority
he himself acted like the Investigating Officer
and it is not clear as to by what means he

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weighed the sample to be 100 grams. Once the
sample taken is not preserved properly and its
integrity becomes doubtful then report obtained
on chemical examination of the substance would
not be admissible and read against the accused-
appellant. The outcome is that it is not proved
as to what, in fact, was recovered by the police
on the spot and what same was prepared. If this
is uncontroverted truth in this case then no
other detail need be elaborated at this stage so
as to test overall merit of the case.

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Apart from that, the prosecution witnesses
have also admitted fact that consenting letter
for carrying out search of the accused-appellant
was prepared by the police after memo of arrest
and recovery had been prepared by the police.
This specific testimony of Constable Arvind Singh
PW-3 appears on page no.32 of the paper-book,
which also goes to show that things were not done
in proper way and in the manner prescribed by
law. Therefore, this aspect also throws doubt on
the authenticity of the arrest and recovery memo
itself.

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Because of these specific reasons, the entire
process is vitiated in the eye of law as no
credence can be given to the prosecution that the
sample was kept in tact and it was duly sent
after complying with due procedure. How the
police came to know about noxious substances
being Doda powder is also not certain.

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In view of above, mandatory provisions of
N.D.P.S. Act have not been complied with and the

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entire process is vitiated in the present case as
compliance of provisions of N.D.P.S. Act is pre-
requisite for recording the conviction against
the accused-appellant. In this case, mandatory
compliance has not been ensured but things have
been handled in whimsical and arbitrary manner
without any rhyme or reason and to the detriment
of the accused-appellant.

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Therefore, impugned judgment and order of
conviction dated 25.04.2013 passed by Additional
Sessions Judge, Court No.10, Mathura, in Special
Session Trial No.119 of 2011 State Vs. Than
Singh, arising out of Case Crime No.164 of 2011
under Sections 15 (C) N.D.P.S. Act, Police
Station- Baldeo, District- Mathura, is hereby set
aside.

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Accused-appellant is acquitted of charge as
above.

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Accordingly, the instant appealsucceeds and
the sameisallowed.

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In this case, the appellant is in jail. He
shall be released forthwith unless and until he
is wanted in connection with any other case. The
appellant shall ensure compliance of Section 437A
Cr.P.C.

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Let a copy of this order/judgment be
certified to the court below for necessary
information and follow up action.
Order Date :- 25.07.2018
rkg

Than Singh v. State of U.P.

Case brief

What is this about?

What did the court decide?

Than Singh v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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