Allowed

Dhanesari Magar v. State of U.P.

Allahabad HC17 Jul 2018JAPL/397/2015

Case brief

AI extract

What is this about?

An appeal against conviction and sentence under the N.D.P.S. Act was allowed. The High Court held that the conviction was illegal due to gross violation of Section 50, as the search was conducted without a gazetted officer or magistrate and without a consent letter. Procedural irregularities including sampling errors and lack of custody records further vitiated the process, leading to the acquitta

What did the court decide?

Conviction and sentence recorded by the Trial Court set aside; appellant exonerated and granted liberty forthwith if not wanted in other cases.

Dhanesari Magar Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2018)

Reserved

Court No. - 42

AFR
Case :- JAIL APPEAL No. - 397 of 2015
Appellant :- Dhansari Magar
Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Piyush Dubey
Counsel for Respondent :- A.G.A.

¶5

Hon'ble Arvind Kumar Mishra-I,J.

¶6

This jail appeal has been preferred by appellant
Dhansari Magar w/o Late Lile Magar against the judgment
and order of conviction and sentence dated 22.12.2014
passed by the Additional Sessions Judge, Court No.1,
Maharajganj, in Special Case No.5 of 2011 (State Vs.
Dhansari Magar), arising out of Case Crime No.845 of 2010,
under Section 8/23 N.D.P.S. Act, Police Station-Sonauli,
District Maharajganj, whereby appellant, Dhansari Magar
was sentenced to ten years' rigorous imprisonment coupled
with fine rupees one lakh with default stipulation to
suffer additional imprisonment for one year.

¶7

Heard Sri Piyush Dubey, learned Amicus Curiae for the
appellant as well as Sri Om Narayan Tripathi, learned AGA
for the State and perused the record.

¶8

Facts relevant for adjudication of this appeal, as
discernible from record, appear to be that the accused
appellant was apprehended by the police party on
27.11.2010 by Ram Bharose Sharma, informant-Station House
Officer, Police Station Sonauli, on 27.11.2010 at 4:00
p.m. when the police party led by aforesaid SHO, Sonauli

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JAIL APPEAL No. - 397 of 2015

¶10

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was checking vehicles near Manav Sewa Sansthan, Sonauli.

¶12

As per description contained in the arrest and recovery
memo Exhibit Ka-3, the Station House Officer along with
other police personnels, including two lady constables-
Geeta Kumari and Supriya Bharti sighted one lady coming
from the country Nepal side. The police became
apprehensive of her and she was asked about her search and
after taking precaution, she was searched by the two lady
constables Geeta Kumari and Supriya Bharti, after the
accused-appellant was informed that she can get her person
searched in the presence of a gazetted officer or a
magistrate, the accused said to them that she has full
faith in them and they may carry out search, for which she
is ready, thereupon, search was made and a blue coloured
bag attached to her waist was recovered and 13 packets of
'charas' were found inside the bag.

¶13

After arranging for balancing equipment, these
packets were weighed, whereupon it weighed 3kg. 500g. in
all. One Indian currency note of denomination Rs.500/- and
one Nepali currency note of denomination Rs.50/- was also
recovered. On being asked about her name, she spelled her
name as Dhansari Magar w/o Late Lile Magar. She was
informed that her act is culpable under Section-8/23
N.D.P.S. Act. She was also asked about the source of her
possession, whereupon she informed that some person
belonging to India met her at Chanrauta and he asked her

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JAIL APPEAL No. - 397 of 2015

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to convey the article to Gorakhpur for which she will be
paid Rs.2000/- and the person did not tell his name to
her. He had told her that he would meet her at Gorakhpur.
While she was on way to Gorakhpur she was caught. The
information of arrest was given on mobile phone to all
concerned and sample of 60 grams was taken out from the
recovered 'Charas' and the rest of the recovered
contraband was kept inside the plastic bag and seal was
appended on it. The sample was also sealed on the spot. No
public witness was ready to testify to the fact of
recovery. Memo of arrest and recovery was prepared on the
spot and the police personnel Ram Tapasya and Dharmendra
Kumar also made their signature on the recovery memo.

¶17

The accused-appellant Dhansari Magarwas taken to the
police station along with the recovered article/substance
at Police Station-Sonauli. The contents of the recovery
memo (Ext. Ka-3) were taken down in the concerned Check
FIR at Case Crime No.845 of 2010 at 5:30 p.m. under
Section-8/23 N.D.P.S. Act. Check FIR is Exhibit Ka-1. On
the basis of entry made in the Check FIR, a case was
registered at aforesaid crime number against accused under
Section-8/23 N.D.P.S. Act on 27.11.2010 and the
investigation ensued.

¶18

The investigation was taken over by the Investigating
Officer Virendra Vikram Singh (PW-5) on 28.11.2010. He
recorded the statement of various witnesses and took note

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JAIL APPEAL No. - 397 of 2015

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of the contents of the Check FIR, the recovery memo and
visited the spot where the arrest was effectuated and
recovery was made and prepared the site plan Exhibit Ka-4.
During investigation, he recorded statement of a number of
persons including the lady constables and the sample was
sent to the laboratory for analysis. The analyst's report
was obtained wherein the analyst found the sample to be
one of Charas. After completing the investigation, the
investigating officer filed the charge-sheet against the
accused-appellant as Exhibit. Ka-5.

¶22

Consequently, the Trial Court heard the accused-
appellant and the prosecution on the point of charge and
it was prima facie satisfied with the case against the
accused-appellant, therefore, framed charge under Section-
8/23 N.D.P.S. Act. The charge was read over and explained
to the accused-appellant, who abjured the charge and opted
for trial.

¶23

In turn, the prosecution produced in all five
witnesses. A brief sketch of the same is as here under:-

¶24

HeadConstable, Ram Nath Rawat (PW-1) has noted
relevant entry in the Check FIR Exhibit Ka-1 and the
relevant G.D. entry at Police Station Sonauli on
27.11.2010 at Case Crime No.845 of 2010 under Section 8/23
N.D.P.S. Act and has proved registration of case against
the accused-appellant.

¶25

R.B. Sharma (PW-2) is the informant of this case. He

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JAIL APPEAL No. - 397 of 2015

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is a witness of fact. He has proved fact of arrest and
recovery made from accused-appellant.

¶29

 Constable Ram Tapasya (PW-3) is a witness of fact

¶30

and similar is testimony of Constable Geeta Kumari (PW-4).

¶31

S.I. Virendra Vikram Singh (PW-5) is the

¶32

Investigating Officer. He has proved the investigation
conducted by him in the case.

¶33

Thereafter, evidence for the prosecution was closed
and statement of the accused was recorded under Section
313 Cr.P.C. wherein she has termed her implication false
and stated that she has been falsely implicated in this
case. She claimed that no contraband/Charas was recovered
from her, she is innocent.

¶34

The defence did not lead any evidence, whatsoever.

¶35

The Trial Court after appraisal of facts and

¶36

circumstances of the case and after evaluating evidence on
record, returned finding of conviction and sentenced the
accused-appellant to ten years' rigorous imprisonment and
awarded fine rupees one lakh with default stipulation to
suffer additional imprisonment for one year.

¶37

Consequently, this appeal.

¶38

The learned amicus curiae has persuaded this Court
that in this case, the mandatory provisions of Sections 50
and 42 of the N.D.P.S. Act have not been complied with by
the police. There was no independent public witness to the
fact of recovery. The sample was admittedly taken only

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JAIL APPEAL No. - 397 of 2015

¶40

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from one of the recovered packets. On the opening of the
sealed packet, 55 packets were counted by the Trial Court,
whereas, the memo of recovery and arrest-Exhibit Ka-3-
contains description of 13 packets only.

¶42

Once the compliance of Section 50 of the N.D.P.S. Act
has not been done, the entire process fails. The sample
was also not brought before any Court and no order was
obtained from any Court for sending the same for chemical
examination. The concerned Malkhana register wherein
relevant entry of the substance recovered was made was not
produced before the court below, therefore, the conviction
recorded is in utter violation of the provisions contained
in the N.D.P.S. Act.

¶43

In support of his case, learned amicus curiae has
placed reliance on the citation - Arif Khan @ Agha Khan
Vs. State of Uttarakhand 2018 Law Suit (SC) 420 - wherein
under facts and circumstances, the Hon'ble Apex Court
after recording its opinion held that search carried out
in violation of the mandate contained under Section 50
N.D.P.S. Act vitiates the entire process and no conviction
can be had on it.

¶44

Learned A.G.A. has replied to aforesaid contention by
explaining various aspects – both factual and legal – and
has claimed that the finding of conviction is consistent
and based on material on record and just sentence has been
awarded to the accused.

¶45

JAIL APPEAL No. - 397 of 2015

¶46

¶47

Also considered the rival submissions put forth by
both the sides.

¶48

Upon consideration of the submissions and upon
consideration of the claim raised by the appellant the
moot point that arises for adjudication of this appeal
hinges on plank whether the prosecution has been able to
establish charge against the appellant beyond all
reasonable doubt?

¶49

Before any factual aspect of this case is
scrutinized, it would be suffice to take note of the
arresting and recovery memo - Exhibit Ka-3 - which, on
bare perusal, is indicative of fact that the entire search
of accused Dhansari Devi was carried out basically by the
two lady constables, on the alleged place of arrest in
utter violation of the mandate contained under Section-50
of the N.D.P.S. Act, the reason being that there is no
whisper and no description contained in the recovery memo
either which may signify a single word or indicate that
the lady on being apprehended by the police, ever spelt or
uttered that she is carrying Charas. It is an invention
made by the police party carrying out alleged search.

¶50

It so appears that the police became apprehensive and
started search of the person of the accused and during
course and sometime mid way of the search, she was
informed that she has right to be searched in the presence
of a gazetted officer or a magistrate. Even no consenting

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JAIL APPEAL No. - 397 of 2015

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letter was prepared on the spot. This omission casts doubt
on the genuineness of the claim made by the police party.
This is gross violation of the mandate contained under
Section 50 of the N.D.P.S. Act. Firstly, the search ought
to have been carried out in the presence of either a
gazetted officer or a magistrate and if not so, then
consenting letter ought to have been prepared on the spot,
which is not the case in hand. Insofar as the factum of
personal search is concerned, Constable Geeta Kumari (PW-
4) has not stated anything as to how she came to know that
the accused-appellant was possessing the contraband
(Charas). The accused did not spell anything that she was
possessing contraband Charas.

¶54

Further, it is admitted position in this case that
the recovered article/substance was found in 13 packets,
but sample was admittedly taken only from one of the 13
packets. This factual aspect also vitiates the sampling
process and procedure and it can be summed up that the
sample so taken out is not credible and loses legal
significance. Further, no Malkhana register was produced
to show and establish fact that the recovered substance
was in fact kept in safe custody at the Police 'Malkhana'.
The constable who was employed to look after 'Malkhana'
was also not produced by the prosecution in support of
claim that the recovered substance was kept intact in safe
custody.

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JAIL APPEAL No. - 397 of 2015

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Next, there is no proof as to on whose order the
sample was sent for examination to the laboratory
concerned at Ramnagar, Varanasi. Because of these apparent
errors, it cannot be said that there was substantial
compliance of mandate contained under Section 50 of the
N.D.P.S. Act. Every factual aspect of this case is in
disarray. The legal coherence which ought to have
pervaded in the act and process of arrest and recovery is
woefully missing. Even the investigating officer has not
come out specifically about the details of the concerned
'Malkhana' register or about fact as to which
Court/Authority was approached for sending the sample to
the laboratory at Ramnagar, Varanasi. No worthy paper has
been brought forth in this record.

¶58

The investigating officer has himself admitted in his
testimony that he took sample from one of the 13 recovered
packets. It is also a fact that the recovery memo
describes 13 packets recovered from inside the bag,
whereas 55 packets in all were found on opening the sealed
packets in the trial court, which was allegedly sealed at
the time of the seizure of the recovered substance. Out of
55 packets, 38 packets were small packets and 17 packets
were big in size. He has gone to the extent of testifying
that he did not record the statement of Constable Geeta
Tiwari under Section 161 Cr.P.C. Because of the aforesaid
facts, the prosecution has failed to inspire confidence in

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JAIL APPEAL No. - 397 of 2015

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establishing fact of arrest and the fact of alleged
recovery of contraband/Charas from accused-appellant
Dhansari Magar.

¶62

 Upon wholesome scrutiny of the testimony of all the
prosecution witnesses and upon consideration of the fact
situation as alleged by the prosecution witnesses, it is
obvious that the whole story does not inspire confidence
rather and it looks shaky and the same appears to be in
sheer contrast to the procedure established bylawin
regard to arrest and seizure contemplated under various
provisions of the N.D.P.S. Act.

¶63

In view of above, the aforesaid citation in the case
of Arif Khan (supra) relied on by the counsel for the
appellant applies in the instant case. Therefore, the
contention raised by the counsel for the appellant are
hereby sustained.

¶64

 In view of above scrutiny and analysis of fact and
law, it is discernible that the Trial Court while
appraising facts and the circumstances of the case and
evaluating the testimony on record erroneously misread the
same and recorded conviction of the appellant overlooking
the mandate contained in Section 50 of the N.D.P.S. Act.
Therefore, the conviction recorded and the sentence
awarded by the Trial Court in Special Case No.5 of 2011
(State Vs. Dhansari Magar), arising out of Case Crime
No.845 of 2010, under Section 8/23 N.D.P.S. Act, Police

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JAIL APPEAL No. - 397 of 2015

¶66

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Station Sonauli, District Maharajganj becomes erroneous
and illegal as such and the same is set aside. In the
final count, this appeal succeeds and the same is allowed.
The appellant is exonerated of the charges.

¶68

In this case, the appellant is in jail. She be set at
liberty forthwith if she is not wanted in connection with
any other case.

¶69

A copy of this order be certified to the court
concerned for information and necessary follow up action.
Order Date :- 17.7.2018

¶70

S Rawat

¶71

JAIL APPEAL No. - 397 of 2015

Dhanesari Magar v. State of U.P.

Case brief

What is this about?

What did the court decide?

Dhanesari Magar 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

Cases cited

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