Raju Dubey Vs State

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Reserved

Court No. - 42

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Case :- CRIMINAL APPEAL No. - 30 of 1992

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Appellant :- Raju Dubey
Respondent :- State
Counsel for Appellant :- U.K. Saxena,R.B.Trivedi,Umesh
Kumar Dubey
Counsel for Respondent :- A.G.A.

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Hon'ble Arvind Kumar Mishra-I,J.

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Heard Ms. Rashmi Srivastava, learned amicus
curiae for the appellant as well as Sri Om Narain
Tripathi, learned A.G.A. for the State and perused
the record of this criminal appeal.

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By way of instant criminal appeal, challenge
has been made to the validity and sustainability of
the judgment and order dated 14.10.1991 passed by
II Additional Sessions Judge, Kanpur Nagar in
Session Trial No.69 of 1991, State Vs. Raju Dubey,
arising out of case crime no.645 of 1990, police
station- G.R.P. Kanpur, District- Kanpur Nagar,
whereby the appellant- Raju Dubey @ Nawal Kishore
Dubey- has been convicted and sentenced to undergo
10 years R.I. coupled with fine of Rs.1,00,000/-,
with default stipulation to suffer additional
rigorous imprisonment for two years.

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Relevant facts giving rise to this appeal, as
discernible from the record appear to be that on
25.09.1990 at about 5.00 P.M. S.I. Surendra Pal
Singh along with Head Constable Swyambar Singh was
busy in checking duty at Platform No.1, when he
received tip off information through a Mukhbir that
some person was sitting on the eastern side of
Platform No.1 near Indication Board and was

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possessing illegal substance and a knife. Working
in this information Sub- Inspector Surendra Pal
Singh along with the other police personnels
proceeded towards the Indication Board and on the
pointing out of Mukhbir, the police party proceeded
towards the spot and saw one man sitting on the
bench. The police party arrested the accused and
upon his such search found 125 grams of charas in
his possession, therefore, recovery memo was
prepared on the spot. The recovered property was
sealed and sample was also drawn from the recovered
property and sample and the recovered property were
separately sealed. Recovery memo is Exhibit Ka-1.
Thereafter accused was taken to the police station
where F.I.R. Exhibit Ka-2 was lodged and the case
was entered in the G.D. Exhibit Ka-3. The same was
sent for chemical examination, whereupon, the
substance was found to be charas.

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Investigation was done and charge-sheet was
submitted. Accused pleaded not guilty to the charge
framed against him under Section 20B (ii) of
N.D.P.S. Act and alleged his false implication in
the case. Defence plea is that the accused had gone
to the railway station and he was arrested.

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The prosecution to prove its case examined
P.W.1 S.I. Surendra Pal. He is the Investigating
Officer and informant of this case. He is witness
of fact of arrest and has also prove recovery memo,
Exhibit Ka-1, Sample material Ex.1, recovered
charas Exhibit II, FIR Exhibit Ka-2, G.D. Exhibit
Ka-3.

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P.W.2 is Mohd. Yasin, who has corroborated
testimony of P.W.1.

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P.W.3 Sahdeo Dwivedi S.I. has proved Exhibit
Ka-3 report of test of the charas, Exhibit Ka-4
report of chemical examination and charge- sheet
Exhibit Ka-6.

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Accused did not produce any evidence.

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The accused claimed in his testimony that he
has been falsely implicated and nothing was
recovered from his possession.

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The court below after considering the merit of
the case recorded conviction for the charge under
the aforesaid section of N.D.P.S. Act and passed
sentence of ten years R.I. coupled with fine of Rs.
1,00,000/- with default stipulation to suffer
additional rigorous imprisonment for two years.

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Resultantly, this appeal.

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It has been vehemently contended by learned
amicus curiae that Section 50 was not compiled
with. The substance recovered was never weighed.
Even the special report does not mention the weight
and there is no base for calculating the weight of
the contraband being 125 grams. Mandatory
compliance of Section 50 of the N.D.P.S. Act was
not ensured. Stock Register was not produced.

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Learned AGA has vehemently submitted that
recovered substance was rightly recovered and
sample of the same was taken and sent for chemical
examination, whereupon, it was found to be 'charas'
weighing 125 grams was infact recovered from the
possession of the accused.

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The moot point that arises for adjudication of
this appeal relates to fact whether the prosecution
has been able to establish the charge beyond
reasonable doubt against the accused?

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Without going into the unnecessary details, it
would be relevant to take note of fact that accused
is stated to have been arrested by S.I. Surendra
Pal Singh and Head Constable Swamver Singh while
they received tip off information when they were
busy in checking duty at Platform No.1 of Kanpur
Station. On tip off information, they reached to
the spot- the Indicator Board- where they spotted a
person sitting on a bench and apprehended him
around 5.10 P.M. On being asked about his identity,
he disclosed his name as Raju Dubey @ Nawal
Kishore S/o Ramdutt Dubey, r/o village Sabapar,
police station- Aharwan Katara, district- Etawah at
present residing Lal Bangala, House No.60, Kanpur
Nagar, and thereafter his person was searched,
whereupon 125 grams of charas was recovered, which
was kept in the rear pocket of pant/trouser worn by
the accused. The entire memo of recovery is silent
about suggestion given to the accused that he has
every right to be searched in presence of a
gazetted officer or a Magistrate. The entire
recovery memo is also silent on the point of
weighing the recovered substance by any equipment,
then the contention raised by the learned amicus
curiae to the ambit that the mandatory provisions
of Section 50 and 55 of N.D.P.S. Act were not
complied with, is justified.

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The police party failed to notice that in the
matter of search of person of an accused, certain
formalities are required to be gone into prior to
carrying out the search. Here, the police party has
failed to make the mandatory and compulsory
requirement even the Stock Register has not been

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produced before the trial court. Then there is no
need of going into other details of this case
because the very foundation of the case- the
arresting and recovery memo- stands vitiated for
the reasons aforesaid.

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Consequently, conviction recorded by the trial
court vide its judgment and order dated judgment
and order dated 14.10.1991 passed by II Additional
Sessions Judge, Kanpur Nagar in Session Trial No.69
of 1991, State Vs. Raju Dubey, arising out of case
crime no.645 of 1990, police station- G.R.P.
Kanpur, District- Kanpur Nagar stands vitiated in
the eye of law and the same is hereby set aside.
This appeal succeeds and is allowed.

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Accused-appellant is exonerated of charge, as
above.

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It is noticeable that order passed by this
Court dated 08.12.2017 is indicative of fact that
the appellant has already suffered the entire
sentence awarded to him by the trial court and was
released from prison on 16.11.2016. However,
whereabouts of the appellant is not known.

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In view of above, the notice, which was
directed to be sent at the address of the accused
was not served on him because his whereabouts were
not known, therefore, no consequential orders need
be passed at this stage.

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Dt.26.07.2018

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Raj

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Hon'ble Arvind Kumar Mishra-I,J

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 Ms. Rashmi Srivastava, learned amicus curiae
for the appellant has rendered valuable assistance
in deciding the appeal, which was pending since
1992, therefore, she is directed to be paid
Rs.10,000/-as her fees by the office of this Court.
Dt.26.07.2018

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Raj

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Raju Dubey v. State

Case brief

What is this about?

What did the court decide?

Raju Dubey v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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