Conviction and appeal dismissed. Court upheld recovery validity despite no independent witness as accused declined magistrate offer. Enhanced 15-year sentence affirmed as justified for third NDPS conviction under Section 31.
Appeal dismissed; appellant to suffer remaining part of sentence; certified copy sent to trial court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Reserved
Court No. - 42
Case :- CRIMINAL APPEAL No. - 7351 of 2007
Appellant :- Vijay Pandey
Respondent :- State Of U.P.
Counsel for Appellant :- Vishnu Pratap
Pandey,Aklank Jain,Jitendra Pal Singh,Satyendra
Pratap Singh-I
Counsel for Respondent :- Govt. Advocate
Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri Jitendra Pal Singh, learned counsel for the appellant and Sri Sanjay Kumar Rajbhar, learned A.G.A. for the State and perused the record of this appeal.
By way of instant criminal appeal, challenge
has been made to the validity and sustainability of
the judgment and order dated 06.10.2007 passed by
Additional Sessions Judge, court no.4, Pilibhit in
Special Trial No.19 of 2007, State Vs. Vijay
Pandey, arising out of case crime no.1666 of 2006,
police station- Puranpur, District- Pilibhit,
whereby appellant- Vijay Pandey- has been convicted
and sentenced to undergo 15 years R.I. coupled with
fine of Rs.1,50,000/-, with default stipulation to
suffer additional rigorous imprisonment for three
years.
Relevant facts giving rise to this appeal, as
discernible from the record, appear to be that S.I.
Sri J.P. Singh Parihar concerning police station-
Puranpur, district Pilibhit lodged written report
on the basis of arrest and recovery of appellant-
Vijay Pandey on 22.01.2006 at 8.45 A.M., which
contained description that the informant- S.I. Sri
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J.P. Singh Parihar along with Constable- Prahalad
Singh were busy in search of wanted offenders and
were present at the Railway- Crossing on Sherpur
Road on 22.12.2006, when they received information
through informer at about 6.10 A.M. that Vijay
Pandey of Shahukara Linepar is about to move
somewhere, is possessing 10 kg. of 'doda' and he
can be apprehended, if quick action is taken.
Informant- S.I. J.P. Singh Parihar- acted on the
tip off information and tried to avail public
witnesses, but no one was ready to be a witness.
Therefore, the informant along with the police
constable and the informer reached to the house of
the accused Vijay Pandey where informer pointed out
towards the house and went away. No sooner than the
informant and the constable reached near the house,
when a man holding white plastic sack in his right
hand came out of the house and after sighting the
police, turned to the left side of the house and
tried to run away from the scene, but he was
apprehended after short chase by the informant
around 6.40 A.M. along with the sack.
On being inquired, he spelled his name Vijay
Pandey s/o Gursharan Pandey, resident of Mohalla-
Sahukara Line Par, Gautiya, Police Station Puran
Pur, District Pilibhit. When further asked that
information has been received that he is possessing
'doda' in his sack, therefore, if he so wishes, the
search may be conducted in the presence of a
Magistrate or a Gazetted Officer, but accused-
Vijay Pandey- told that his search may be conducted
by them and he has no objection, whereupon, the
search was made by the informant in the presence of
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the accompanying Constable. Thereafter, after
search seven packets were recovered from inside the
plastic sack. Weighing equipment was arranged by
the informant and the recovered substance was
weighed, then 2-1/2 kg. each substance was
recovered from two green packets. On opening the
same, it was found to be 'doda'. Similarily, from
the yellow polythene packet- 1 kg. 'doda' and 2 kg.
each 'doda' was also found into two separate yellow
polythene packets. The total substance weighed 10
kgs. Since this act was covered under Section 18/20
N.D.P.S. Act and was punishable as such, the
accused was arrested after being told about
aforesaid fact and the recovered substance was kept
inside the plastic sack and was sealed on the spot.
Arrest and recovery memo was prepared on the spot.
Its copy was prepared and was handed over to the
accused. Local public was asked to stand witness to
the fact of recovery and arrest, but no one was
interested. This memo of arrest and recovery is
Exhibit Ka-1. F.I.R. was lodged at Police Station-
Puranpur by the informant on the basis of recovery
memo, Exhibit Ka-1.
The Check FIR was entered at Case crime No.1666
of 2006, under Section 18/20 N.D.P.S. Act at Police
Station Puranpur at 8.45 A.M., which is Exhibit Ka-
6. Consequently, relevant entries were made in the
concerned General Diary and the investigation of
the case ensued and was taken over by S.I. Afsar
Khan on 22.12.2006- the day on which the case was
lodged. He recorded the statement of the concerned
Constable and also took note of contents of the
arrest memo and the Check FIR and the concerned
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General Diary entry and after recording the
statements of witnesses, prepared the site plan
Exhibit Ka-4 and the sample was taken out from the
recovered substance by the Circle Officer and was
conveyed over to the Forensic Science Laboratory at
Agra for examination by Constable Shamsher Ahmad.
The Chemical Examination Report was obtained and
after completing the investigation, charge- sheet
Exhibit Ka-5 was filed against the accused. The
Chemical Examination Report confirmed the recovered
substance to be 'Doda Powder'.
The Investigating Officer has also proved the
entry made by the concerned Constable in the Check
FIR and the General Diary, whereby case was
registered against the accused. He has also proved
relevant papers Exhibit Ka-7 to 10 etc.
The accused was charged under Section 8/15
N.D.P.S. Act for possessing illicit contraband 10
kgs. doda powder. The accused denied the charge
and claimed to be tried.
The prosecution to prove its case examined
P.W.1 S.I. J.P. Sigh Parihar. He is the informant
of this case. P.W.2 is Constable Shamsher Ahmad.
P.W.3 Constable Prahalad Singh is a witness of
fact, who accompanied the informant on 22.12.2006
and effectuated recovery from the accused. P.W.4 is
S.I. Afsar Khan, who is the Investigating Officer
of this case. He has prepared the site plant,
Exhibit Ka-4 and after completing the necessary
formalities filed the charge sheet Exhibit Ka-5
against the appellant.
Statement of the accused was recorded under
Section 313 Cr.P.C., wherein claim was raised that
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he has been falsely implicated in this case. He
denied any recovery having been made from him. He
submitted that he runs grocery shop near police
out-post where police personnel used to buy
articles on credit, when asked for payment, they
felt offended and falsely implicated him in this
false case of recovery.
The accused did not lead any evidence in
defence.
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
the sentence of 15 years R.I. coupled with fine
Rs.1,50,000/- with default stipulation to suffer
additional rigorous imprisonment for three years.
Resultantly, this appeal.
The contention has been raised that there is no
independent witness in support of the recovery of
contraband- doda powder- from the possession of the
accused. The recovery is vitiated on account of
violation of mandatory provisions of search
contained under Section 50 of the N.D.P.S. Act. The
recovered substance was not produced in court and
the court wrongly anticipated weeding out of the
same without any basis. Though, it is correct that
accused is a previous convict and in two previous
cases he has been sentenced to imprisonment for 7
years and 5 years, respectively. The recovered
contraband- doda- was less than the commercial
quantity for which maximum punishment is 10 years,
but the accused has been erroneously and illegally
punished for 15 years R.I. for no worthy reason.
Lastly, he took specific plea that the police
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personnel used to take articles from his grocery
shop, but they did not make payment for the same,
when the accused asked for payment, he was roped
in, in this case.
In reply, the learned A.G.A. has submitted that
accused is pre- convict and has been convicted
previously in two cases concerning N.D.P.S. Act.
The parameter and the guidelines applicable for
pre- convict relating to the sections of Indian
Penal Code are not applicable in the cases
pertaining to the NDPS Act. It can be easily
observed that in both the convictions, the
appellant was admitted to bail; and after bail, he
again engaged himself in the commission of crime
pertaining to N.D.P.S. Act for the third time. It
was his third offence, which shows that he is a
habitual offender of transporting of narcotic-
drugs. He further submits that all the mandatory
provisions prescribed in the N.D.P.S. Act have been
complied with in totality. He added that recovered
substance was rightly recovered and sample of the
same was taken and sent for chemical examination,
whereupon, it was found to be 'doda power' weighing
10 kg.- which was infact recovered from the
possession of the accused. He further submits that
sentencing was done accordingly to the provisions
of N.D.P.S. Act and the trial court has rightly
recorded punishment for 15 years to the appellant
by virtue of mandate contained under Section 31 of
the N.D.P.S. Act. Lastly, he added that the
prosecution has succeeded in proving the charge
against the appellant beyond all reasonable doubts,
as the prosecution witnesses have consistently
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supported the prosecution case as spelt out in the
first information report, which stands further
corroborated by the report of the Forensic Science
Laboratory, Agra, which confirmed the recovered
substance to be 'doda powder'.
Also considered the rival submissions.
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?
Upon careful scrutiny of the record, the
testimony adduced and particularly the documents on
record and the very foundation of the case- the
fact of arrest and the recovery, memo-Ext. Ka-1, it
is reflected that on 22.12.2006, S.I. Sri J.P.
Singh Parihar- PW-1- the informant accompanied by
constable Prahlad Singh were on duty in search of
wanted criminals, when they received tip off
information around 6:10 a.m. through an informer
that Vijay Pandey s/o Gursharan Pandey, resident of
Mohalla- Sahukara Line Par, Gautiya, Police
Station- Puranpur, District- Pilibhit is in
possession of doda powder and is about to convey
some destination and in case quick action is taken,
he can be apprehended. Acting on this information,
S.I. Sri J.P. Singh Parihar tried to arrange public
witness, but no one was willing for being a
witness. Therefore, the informant along with
Constable Prahlad Singh and the informer reached
near the house of the accused where the informer
pointed out towards the house and moved way from
the scene. When S.I. Sri J.P. Singh Parihar and the
constable Prahlad Singh arrived at the house of the
8
accused, then a person was sighted on the northern
left side of the house. The sight of the police
frightened him and he tried to run away from the
scene, when he was caught around 6.40 A.M. on
22.12.2006 after a little chase for about 20 paces
by both- S.I. Sri J.P. Singh Parihar and the
Constable Prahlad Singh- around 6:40 a.m. on
22.12.2006. On being asked the person spelt his
name, as Vijay Pandey s/o Gursharan Pandey resident
of Mohalla- Sahukara Line Par, Gautiya, Police
Station- Puranpur, District- Pilibhit. When asked
by the police that they have received information
that he is possessing 'doda', and in case he wants
his search to be carried out in the presence of
magistrate or a gazetted officer, then they may be
called there, but the offer was declined and trust
was reposed by the accused in the police party
itself, whereupon, search of the accused was made,
one white sack was recovered from his hand
whereupon, it was inscribed 'Rajbhog Khas Aap Ke
Liye Maida', wherein, seven packets were recovered,
weighing equipment was arranged and it was brought
by Constable Prahlad Singh, then these packets were
weighed, 2-1/2 kg. of substance/doda was found in
two green packets. These were opened, then doda was
suspected, one yellow polythene 1 kg doda was also
recovered and in two separate yellow polythene
packets weighing 2 kg each were found. The total
substance/doda weighed 10 kg. This act being an
offence under Section- 18/20 N.D.P.S. Act. Reason
for arrest was told by the police to the accused
and he was arrested and the recovered material was
again placed inside the sack and the sack was
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sealed and recovery memo was prepared on the spot
and copy whereof was handed over to the accused and
it was signed by S.I. J.P. Singh Parihar, Constable
Prahlad Singh and also endorsed by accused- Vijay
Pandey.
The case was investigated by P.W.-4- S.I. Afsar
Khan, who inspected the spot, besides recording
statements of various witnesses and after obtaining
chemical examination report of the samples sent for
examination, he filed charge- sheet- Ext.Ka-5
against the accused. He also has prepared the site
plan-Ext. Ka-4.
To prove the case, the prosecution produced
witnesses of fact PW-1 S.I. Sri J.P. Singh Parihar
and PW-3 Constable Prahlad Singh. Both witnesses of
facts have been cross examined on vital aspects of
recovery regarding sealing of the contraband of the
recovered substance on the spot and the answer
given are found to be satisfactorily giving
credence to the fact of recovery and arrest of the
accused on the spot around 6:40 a.m. on 22.12.2006.
Contention has been raised that there is
violation of Section-50 of the N.D.P.S. Act.
Obviously, after tip off information was
received, the very same day on 22.12.2006 around
6:10 a.m., the possibility was expressed that in
case, quick action is taken, accused can be
apprehended, otherwise he is likely to move away
with the contraband. S.I. J.P. Singh Parihar- PW-1
tried to arrange public witness, but no one was
ready to stand witness to the fact of recovery.
The informant S.I. J.P. Singh Parihar- P.W.-1
rushed to the spot without any delay, and after the
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house of the accused was pointed out by the
informer both- J.P. Singh Parihar- PW-1 and
Constable Prahlad Singh reached to the house where
they sighted one person holding in his hand a white
sack, whereupon, he tried to flee away from the
scene after having sighted the police party, but
was caught after a little chase upto about 20 paces
away from his house. When asked about possession of
the contraband, the accused admitted the same,
then option was given to him if he wishes to be
searched in the presence of the Magistrate or a
Gazetted Officer, which he declined and reposed
trust in the police party itself, then search was
made. On search being made seven polythene packets
were recovered from inside the white sack. On
weighing the seven recovered packets, the aggregate
weight of the contraband/substance was found to be
10 kg in all.
Here, it can be observed that the search cannot
be confined to the search of the person as is the
case herein in hand because it was the sack
recovered from the hand of the accused which the
accused was holding at the time of his apprehension
by the police- strictly speaking this aspect
removes doubt regarding factum of search of person.
Next, option to be searched before a Magistrate
or a Gazetted Officer was given at the appropriate
time prior to the search being made but the offer
was declined by the accused. Merely, because some
description does not find place in the recovery
memo- Ext. Ka-1- to the ambit that prior to the
search, the police personnel did not carry out
inter-se search would not be fatal, for the reason
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that both the witnesses of fact- J.P. Singh Parihar
P.W.-1 and Constable Prahlad Singh PW-3 have been
cross examined on this point and they have
testified that prior to search, they had made
search inter se, therefore, mere non mention of
fact of inter se search would not render the search
illegal or fatal.
In so far as sampling of the recovered
substance is concerned, obviously it has emerged in
the testimony of the investigating officer S.I.
Afsar Khan-PW-4 that the sampling was done by the
Circle Officer and the substance was then sealed by
the seal of the circle officer himself, therefore,
sampling process cannot be doubted that way.
So far as, fact of safe conveyance of the
sample to the Forensic Science Laboratory is
concerned,thatveryaspect,hasbeen
satisfactorily proved by Constable Shamsher Ahmad
PW-2. He has categorically stated that he obtained
the sample from the police station and took the
same to the Forensic Science Laboratory, Agra and
entry of the same was noted in the General Diary of
date 14.01.2007 at Serial No.16 at 8:20 hours.
Similarly, the entry of return journey was also
noted in the concerned General Diary at Serial
No.29 of date 17.01.2007 at 2:50 p.m. He has
categorically stated that the substance was taken
in safe and sealed condition to the Forensic
Science Laboratory and no tampering was made and it
was so handed over at the Forensic Science
Laboratory. Therefore, on the point of sampling of
the contraband substance and safe conveyance, the
testimony inspires confidence and there is nothing,
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which may create any doubt regarding non-
compliance of mandatory provisions of the N.D.P.S.
Act so as to render the same doubtful.
Insofar as, contention regarding enhanced
punishment is concerned, then obviously bare
perusal of the impugned judgment and order of
conviction itself it indicative of fact that the
accused was previously convicted under the
provisions of N.D.P.S. Act (8/15) and was convicted
in two Special Sessions Trial no. 30 of 2007 (State
vs. Vijay Pandey) and 42 of 2005 (state vs Vijay
Pandey), wherein, he has been sentenced to six
years imprisonment and five years rigorous
imprisonment coupled with fine respectively. Now,
the present conviction is the third conviction and
the sentence that can be awarded on account of
previous conviction shall be the half of the
maximum sentence prescribed, then it is gathered by
virtue of Section 31 of the N.D.P.S. Act that the
maximum prescribed sentence would be a period which
may extend up to ten years and half of 10 years
period shall be fixed to five years period, for
each conviction. Considering from that angle the
accused is liable to be imposed with the sentence
of imprisonment for 15 years. That way imposition
of sentence for 15 years is justified and the same
legal aspect has been rightly taken into account by
the trial court while imposing sentence on the
appellant.
In view of above, it cannot be said that the
enhanced sentence is violative of the provisions of
the N.D.P.S. Act.
The learned trial Judge while appraising the
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facts and circumstances of the case and evaluating
testimony of the prosecution witnesses has rightly
convicted the accused and passed just sentence,
which finding of conviction and sentence is upheld
in this appeal. Consequently, the appeal sans merit
and is accordingly dismissed.
In this case, the appellant is in jail. He will
suffer remaining part of his sentence.
Let a copy of this order be certified to the
concerned trial court for its intimation and follow
up action.
Dt.10.10.2018
Raj
2 issues framed by the court
Whether the recovery of contraband violated mandatory provisions under Section 50 of the N.D.P.S. Act due to absence of independent witness?
Whether the enhanced punishment of 15 years was justified for a third offender under Section 31 of the N.D.P.S. Act?
5 provisions across 2 enactments
Vijay Pandey
State Of U.P.
Arvind Kumar Mishra-I
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court