Dismissed

Gopal Yadav v. State of U.P.

Allahabad HC7 Sept 2018CRLA/7048/2011

Case brief

AI extract

What is this about?

In a criminal appeal under the N.D.P.S. Act, the High Court acquitted the appellant. The court held that the prosecution failed to prove the safe conveyance of seized narcotics from the police maalkhana to the court due to lack of a register or witness testimony. Furthermore, a 50% discrepancy in weight recovered versus that found in court rendered the conviction perverse and based on conjecture.

What did the court decide?

Appeal allowed, conviction and sentence set aside, accused acquitted, bail bonds cancelled, sureties discharged.

Gopal Yadav Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2018)

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A.F.R.

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Court No. - 42
Case :- CRIMINAL APPEAL No. - 7048 of 2011
Appellant :- Gopal Yadav
Respondent :- State Of U.P.
Counsel for Appellant :- Khurshed Alam
Counsel for Respondent :- Govt. Advocate

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Hon'ble Arvind Kumar Mishra-I,J.

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By way of instant criminal appeal, challenge
has been made to the validity and authenticity of
the judgment and order of conviction dated
1.12.2011 passed by the Additional District and
Session Judge, Court No.16, Deoria in Criminal Case
No.14 of 2006 (State versus Gopal Yadav), arising
out of Case Crime No.26 of 2006, under Section -
8/20 N.D.P.S. Act, Police Station-Laar, District
Deoria, whereby the trial court has convicted the
appellant under Section 8/20 N.D.P.S. Act and has
sentenced him to suffer rigorous imprisonment for
three years with fine Rs.5,000/- and in case of
default, he would have to suffer additional
rigorous imprisonment for three months.

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Relevant facts of this case are that the

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Informant PW-1 Rajendra Pratap Singh Yadav S.O. of
Police Station - Laar, District-Deoria was busy in
maintaining law and order on 27.1.2006 alongwith
other police personnel Constable Arvind Yadav, and
Constable Suleman Khan arrived at Mehrauna Barrier.
There they parked the official vehicle and started

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checking vehicles at petrol-pump and taxi stand by
Constable Arvind Yadav, Constable Awadhesh Tiwari,
Constable Sant Kumar Yadav, Constable Chandra Jeet
Yadav and Constable Govind Yadav. When they
proceeded towards Mehrauna Ghat Bridge, they
sighted a man coming towards them with a gunny bag
on his head. On the site of the police, he was
frightened, turned back and tried to run away, but
the police personnel present over there apprehended

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him on the pakka road around 4:30 p.m. On being
asked, he spelt his name Gopal Yadav son of Jagdeo,
resident of Tedhighat, P.S.-Hussainganj, District-
Siwan, Bihar. On being asked as to why he was
running away, he told that he is having 10.250
kilograms of 'ganja' in the gunny bag. At this, he
was suggested that he has every right to be
searched before a Magistrate or a Gazetted
Officer, whereupon Gopal turned down this offer and
reposed faith on the police party itself for his
search. Consenting letter was prepared on the spot
and after making inter-se search by the police
party, search of Gopal was carried out, whereupon
three packets of contraband kept inside the gunny

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bag, which the accused was carrying on his head was
recovered. Besides the alleged contraband, Rs.300/-
was also recovered from the pocket of his trouser.
He was asked to show the authority to keep the
contraband 'ganja' but he could not show any
authority. Therefore, his act was found to be in
violation of Section 8/20 N.D.P.S. Act. He was
taken into custody and the recovered contraband
'ganja' was kept inside the gunny bag and sealed.
Specimen seal was prepared. Memo of recovery was

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made and read over to accused and a copy thereof
was given to him. A number of persons from the
public had gathered on the spot, in the meanwhile
but no one was willing to stand witness to the fact
of recovery of the contraband. This memo is Exhibit
Ka-2. On the basis of the recovery memo, case was
registered through Informant-Rajendra Pratap Singh
Yadav at Police Station-Laar, District-Deoria on
27.1.2006 at 6:15 p.m. and the accused was detained
at the police station and the recovered substance
'ganja' was kept in the 'maalkhana' and case was
lodged at Case Crime No.26 of 2006, under Section-
8/20 N.D.P.S. Act at Police Station-Laar, District-

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Deoria against the accused.

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Relevant entries were made in the concerned
General Diary of the aforesaid date and time at
aforesaid police station. Thereafter, the recovered
substance was produced before the court where
sampling of the recovered contraband was done and
the sample was sent for chemical examination to
'Vidhi Vigyan Prayogshala', which on examination
was found to be contraband 'ganja'. The
investigation ensued after the lodging of the
F.I.R. and was conducted by PW-6 Mitthu Ram, who

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after recording the statement of prosecution
witnesses and preparing the site plan Exhibit Ka-5
filed charge-sheet Exhibit Ka-6, under Section-8/20
N.D.P.S. Act against the accused.

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Consequently, the accused was charged under

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Section- 8/20 N.D.P.S. Act. The charge was read
over and explained to the accused, who denied the
charge and opted to be tried.

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The prosecution produced in all six witnesses:-

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PW-1 is Rajendra Pratap Singh Yadav, he is the
Informant in this case. PW-2 is Awadhesh Tiwari-he
is witness of fact of recovery and arrest. PW-3 is

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Constable Sant Lal-he has made relevant entries in
the concerned Check FIR and the G.D. Exhibit Ka-3
and Exhibit Ka-4 respectively. PW-4 Constable
Arvind Kumar is also witness of fact, he has also
proved fact of recovery and arrest of the accused-
Gopal. PW-5 is Constable Sant Kumar Yadav, he is
also witness of fact of recovery and arrest of the
accused. PW-6 Mitthu Ram is the Investigating
Officer of this case. He has proved various papers
regarding the investigation and after completing

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the investigation, he has filed the charge-sheet
against the appellant and proved the same as Ext-
Ka-6.

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 Thereafter, the evidence of the prosecution
was closed and statement of the accused was
recorded under Section-313 Cr.P.C, wherein he has
claimed innocence and submitted that all the
witnesses are police personnel. Nothing was
recovered from his possession and he has been
falsely implicated in this case.

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 No testimony whatsoever was led by the
defense.

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The trial court after vetting themerit of the

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case returned aforesaid finding of conviction and
sentenced the appellant to three years rigorous
imprisonment with fine Rs.5,000/- and in case of
default, he was to suffer additional rigorous
imprisonment for three months.

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Resultantly this appeal.

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Learned counsel for the appellant, Sri Khurseed
Alam has vehemently contended that in this case,
there are certain apparent infirmities in the
finding recorded by the trial court. Learned
counsel for the appellant further emphasised that
the recovered substance was not weighed on the spot
and there is no mention in the recovery memo-
Exhibit Ka-2 that prior to carrying out the search
of the accused, the police personnel present on the
spot inter-se searched themselves in order to show
that they don't possess any objectionable material.
He further submitted that assuming it to be that
every process was legally performed and infact the
contraband substance was recovered from possession

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of accused and the same was kept in sealed
condition at the police 'maalkhana', even then
there is no testimony on record, which may

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establish fact that the sealed substance was taken
out from the 'maalkhana' in intact position and the
same remained intact throughout it conveyance from
the 'maalkhana' upto the court where sampling was
done after the substance was produced before the
Court. Merely, because it was unsealed in the court
would not itself confer legitimacy on the safe
upkeep of the contraband and ensure safe and intact
conveyance of the substance to the court, because
fresh sealing of the packet can be done even
immediately outside the court premises itself and
that possibility cannot be ruled out. There is no
explanation as to why sampling was not done at the
time of recovery and it was kept suspended to be
completed before the court (concerned lower court).
Next contended that assuming it to be that the
accused told the weightage of the substance 'ganja'
weighing over 10 kilograms and 250 grams and the
police took the weight correct. It means police
party based its judgment on guess work. It is
admitted position that the substance produced
before the lower court was found to be 5.250
kilograms on weighing the same before the court.

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Guess work of the police party stands exposed when
the substance unsealed before the court weighed
5.250 kilograms. This material variation in total
weight cannot normally be treated to be 10
kilograms even after making inquiry by physical
verification of the weightage of the substance
recovered. Not only this, but also there is no
proof even before the court as to what was the
actual weight of each of the polythene packets
numbering three in all, which packets were produced
before the court. On that point also things are not
clear. If the recovered substance is found not to
have been kept in intact condition during its
conveyance from 'maalkhana' to the lower court
where sampling is claimed to have been done then
there cannot be any point in convicting the accused
for the alleged recovery of the substance in
question notwithstanding fact that it was found to
be 'ganja' after examination by the Forensic
Science Laboratory. In line of his argument,
learned counsel claimed that the appellant-accused

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is innocent, he has no criminal antecedent.
Appellant has been falsely roped in this case by

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the police.

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Per contra, learned A.G.A. claimed that each
and every aspect of recovery of 'ganja' was proved
by overwhelming testimony of the prosecution
witnesses say PW-1 the Informant - Rajendera Pratap
Singh Yadav and the prosecution witnesses Awadhesh
Tiwari, Arvind Kumar and Sant Kumar Yadav. He
further claimed that the very next day of recovery,
the recovered substance was produced before the
court and 50 grams of sample was taken out of each
packet, which sample was duly send for chemical
examination, which on examination was found to be
contraband 'ganja'. Moreover, the accused did not
specifically denied fact that the produced
substance was not recovered from his possession.
The compliance of provisions of Section 50 of the
N.D.P.S. Act has been duly done. The accused was
informed of his right to be searched before the
Magistrate or a Gazetted Officer. Consenting letter
was also prepared on the spot, therefore, all the
essential ingredients as required contained under
various provisions of the N.D.P.S. Act for proving
guilt of the accused were duly proved.

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Also considered the rival submissions.

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In the light of the submissions so raised, the
moot point that arises for consideration relates to
fact, whether the prosecution has been able to
establish the charge beyond all reasonable doubt?
In this way certain things need to be adjudicated
upon and after bare perusal of the entire record,
it is reflected that on 27.1.2006, a police party
led by S.O. Rajendra Pratap Singh Yadav reached at
place Mehrauna Ghat Bridge, maintaining law and
order in the area. The Government vehicle was
parked in the nearby place and vehicles were being
checked near petrol-pump and taxi stand. While the
checking police party proceeded towards Mehrauna
Ghat Bridge, a person was sighted by them, who was
carrying load over his head. While, he sighted the
police, he tried to fled away from the spot. This
created suspicion, therefore, the police personnel
apprehended him on the road itself around 4:30 p.m.
On inquiry being made, he spelt his name Gopal
Yadav s/o Jagdeo, resident of Village-Tedhighat,
Police Station-Hussainganj, District-Siwan, Bihar.
When asked by the police party as to why he was

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running away, he told that he is possessing 10.250
kilograms of 'ganja'. Upon said disclosure, he was
offered by the Informant-(S.O.) Rajendra Pratap
Singh Yadav, whether he would like to be searched
in the presence of a Magistrate or a Gazetted
Officer, whereupon he reposed faith in the police
party itself and was ready for search. The police
party inter-se searched each other and became sure
that no one was possessing any contraband or
objectionable material. Thereafter, search was made

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of Gopal, whereupon three polythene packets kept
inside a gunny bag, kept on the head of the accused
were recovered, wherein 'ganja' approximately
10.250 kilograms was recovered. Weight of
contraband was an inference and guess work of the
police party. On being asked about the authority to
keep the same, the accused could not show any
authority.

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Consequently, he was taken into custody and the
recovered substance was kept under seal. The memo
of recovery and arrest was prepared on the spot and
read over to all the police personnel as well as
the accused on the spot and a copy of the recovery

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memo was also given to the accused. No public
witness was ready to stand witness to the fact of
recovery and arrest. On the basis of recovery memo
- Exhibit Ka-2, a case was registered at the Police
Station-Laar, District-Deoria on 27.1.2006 at 6:15
p.m. and a case at Case Crime No.26 of 2006, under
Section 8/20 N.D.P.S. Act . The Check FIR is
Exhibit Ka-3. Relevant entries were made in the
concerned General Diary and the case was registered
against the accused at aforesaid case crime number

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under the aforesaid section of N.D.P.S. Act at
aforesaid police station. The case was investigated
into by PW-6 Mitthu Ram, who took over the
investigation on 28.1.2006, recorded the statement
of the accused and other police personnel inspected
the spot, prepared the spot map Exhibit Ka-5. In
the meanwhile, during investigation the recovered
substance was produced before the court, where it
was weighed and sampling was done and 50 grams of
the contraband was taken out as sample and send for
chemical examination and after completing the
investigation, the Investigation Officer filed
charge-sheet-Exhibit Ka-6. On examination, the

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sample was found to be contraband 'ganja' and a

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report of the Joint Director of Vidhi Vigyan
Prayogshala has been sent in the case. Fact of
recovery of the substance has been proved by the
Informant-PW-1 Rajendra Pratap Singh Yadav. He has
proved the contents of the memo of recovery-Exhibit
Ka-2 prepared on the spot at 4:30 p.m. on 27.1.2006
and he has proved lodging of the FIR on the basis
of the aforesaid memo at Police Station-Laar on
27.1.2006 at 6:15 p.m. The lodging of the FIR has

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been confirmed by another witness PW-3 Sant Lal,
who prepared the relevant entries entered in the
Check FIR and the concerned G.D. entry at Police
Station-Laar and he was also 'maalkhana moharrir'
on the date of lodging of the FIR and he has
confirmed fact that the recovered substance was
kept at the police 'maalkhana', after the case was
lodged. However, after scanning and scrutinizing
the testimony of all the prosecution witnesses say
all the six prosecution witnesses, there is not a
single evidence which may unambiguously establish
fact that the recovered substance when kept at the
'maalkhana' though was sealed, but the same was

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conveyed in safe and intact position from the
police station 'maalkhana' upto the court. No
'maalkhana register' has been produced before the
court during trial and no witness produced to
verify the substantial aspect of conveyancing of
the contraband in safe position from the 'police
maalkhana' upto the court. This way, the
possibility of tampering with the contraband
substance cannot be ruled out. On this aspect the
evidence is altogether missing and no thrust can

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be given to the vocal testimony of the police
constable including the investigating officer. Even
the trial court has failed to take proper note of
safe conveyancing of the contraband from the police
'maalkhana' to the court.

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Legally, it is fair to do sampling of a

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contraband substance in the court itself after the
same has been duly seized and kept under seal at
the 'maalkhana'. But the upkeep and safety of the
sealed packet must be ensured and proved to have
been so till the substance/packet was produced in

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court where sampling process was done and
completed. In this case at hand there is no

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evidence, worth its name to the ambit that the
sealed packet remained in intact position
throughout its conveyance from 'maalkhana' upto the
court. Evidence is blissfully missing on this
particular aspect of this case. If possibility of
tampering with the seized substance surfaces then
advantage goes to the accused.

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Next, the recovered substance though was not
weighed physically on the spot was told to be
10.250 kilograms in weight, which was so believed

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by the police party led by PW-1 Rajendra Pratap
Singh Yadav. Under aforesaid specific fact
situation, it can be legitimately observed that a
normal man would always conform to the weight of 10
kilograms, if it is told to be so and it actually
weighed so, but a quantity which is told to be 10
kilograms in weight is found to be approximately
around 5 kilograms (5.250 kg) cannot be said to be

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a guess work of a police team led by none other
than the Station House Officer, therefore things
are not clear about the actual contraband recovered
from the possession of the accused on the spot. On
that point, the prosecution has not come out

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specifically, as to how a substance, which though
was told to be 10 kilograms and was so believed
without confirmation which infact was found to be
5.250 kilograms while opened and weighed before the
court itself. These two shortcomings are
substantial and works strongly for non-compliance
of the mandatory provisions of the N.D.P.S. Act and
for that count it is apparent that the trial court
based its finding of conviction on conjecture, not
supported by evidence on record and the attendant
circumstances of this case. That way the finding of
conviction is vitiated as its sans material. On the
point of safe conveyance of the recovered substance
from 'maalkhana' to the court in intact position of
the recovered substance. Possibility of tampering
with the sealed packet during conveyance cannot be
ruled out. Neither the constable, who carried the
substance from the maalkhana upto the court was
produced nor the 'maalkhana register' was produced
which increases possibility of tampering with the
sealed packet to higher degree and renders the
judgment of conviction recorded by the trial court
erroneous and perverse and on that count the entire

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conviction recorded by the trial court vide its
judgment and order dated 1.12.2011 is also vitiated
and the accused involved in aforesaid case is
liable to be acquitted.

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Resultantly this appeal is allowed and the
conviction and sentence passed by the trial court
in this case is hereby set aside.

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The appellant is already on bail. His personal
bonds and bail bonds are cancelled and sureties are
discharged.

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

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Order Date :- 7.9.2018
S Rawat

Gopal Yadav v. State of U.P.

Case brief

What is this about?

What did the court decide?

Gopal Yadav 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

Parties & counsel

Coram

Case details

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