Dismissed

Santosh @ Bhure v. State of U.P.

Allahabad HC31 Jul 2018JAPL/5109/2017

Case brief

AI extract

What is this about?

In a jail appeal against conviction under the N.D.P.S. Act for drug possession, the High Court upheld the trial court's findings. The Court rejected the appellant's claims regarding procedural lapses, specifically citing Section 50 compliance and the informant's role in investigation, as justifiable and not sufficient to quash the conviction.

What did the court decide?

Appeal dismissed; appellant to serve remaining sentence awarded by trial court.

The instant criminal appeal has been preferred by the appellant Santosh @ Bhure against judgment and order of conviction dated 18.7.2017 passed in Special Case No.13 of 2016, under Sections 21/22 N.D.P.S. Act, P.S. G.R.P. Mahoba, arising out of Case Crime No. 349 of 2016, whereby appellant has been convicted and sentenced under Section 22(C) N.D.P.S. Act with the sentence of ten years rigorous imprisonment and a fine of Rs.1,00,000/- (one lakh) with a default stipulation for additional simple imprisonment for one year.

Brief facts of this case as discernible from record appear to be that the Informant, S.O. G.R.P. Hari Vilas along with other police personnel was on checking duty of platform at Railway Station Mahoba. After checking the various trains on platform no.1 and the waiting room, the informant along with his police party was going towards platform no. 2 and 3 through the station

over bridge, then he received tip-off information that a person is sitting near the recreation room under the shed of platform no. 2 and 3 and he is possessing noxious substance and he is about to leave the place. On this information, the informant along with the informer and Head Constable, Dharmendra Singh and Kamal Singh rushed to the spot. They tried to avail public witness, but no one was ready to be a witness. As soon as they reached near the recreation room, the informer pointed towards the person with black pant and brown shirt sitting under the cement shed, whereupon, the police party proceeded towards that person when he started moving away, he was asked to stop and after using light force, he was apprehended towards platform no.3 of the Railway Station Mahoba around 7:30 a.m. On being asked, he told that he is possessing noxious substance Alprazolam, whereupon, he was apprised of his right to be searched in the presence of a Gazetted Officer or a Magistrate but the accused reposed confidence in the police and agreed to be searched by them. The informant prepared the consenting letter, Exhibit Ka-2 and prior to search, the police party searched inter-se its own colleagues, whereupon nothing noxious was found. On search being made of accused, pink coloured noxious substance was recovered from a polythene packet. It was told that this is alprazolam powder and the accused told that he used to adulterate it with the tea and biscuits, which is used by the passengers, which renders them unconscious and

after that the goods are stolen. On being asked about the authority to prove the noxious substance, the accused could not show anything, therefore, he was taken into custody after complying with the mandatory provisions of the N.D.P.S. Act. Electronic balancing equipment was brought through Constable Dharmendra Singh and the recovered subststance was weighed, whereupon it aggregated 120 grams, out of which 20 grams quantity was taken as sample and was kept under seal. Even at the time of effectuating arrest, a number of persons were present on the spot, however, no one was ready to be a witness because all were passengers and busy in their scheduled journey. After completing the formalities and keeping the recovered substance under seal, all the police personnel appended their signature on it and the signature of accused was also obtained on it. A copy of the recovery memo was given to the accused. Accused was taken to the Police Station G.R.P. where a case was registered against the appellant around 9:05 a.m. the very same day on 5.9.2016. In this case, no other competent police personnel was available at Police Station G.R.P. Mahoba, therfore, first note / parcha of the case was dealt by the Informant-Hari Vilas himself and he recorded statement of the accused. However, record reflects that on the basis of the recovery memo, an entry was made in the Check FIR at Case Crime No.349 of 2016 under Sections 21/22 of the N.D.P.S. Act against the accused at Police Station G.R.P. Mahoba, copy whereof is Exhibit Ka-

6. Relevant entries were entered in the concerned General Diary of 5.9.2016 at Serial No.19 and a case was registered against the accused at aforesaid date and time, copy whereof is Exhibit Ka-7. Record further reflects that in this case, investigation of this case was taken over by Indramohan Badola PW-3, who after recording statement of the informant and the other police personnel, members of the raidingin this case, also prepared the site plan Exhibit-Ka-4. He also facilitated sending of the sample of the recovered substance to the Forensic Science Laboratory for examination and after obtaining receipt thereof same made entry in the concerned G.D. He also obtained the report of the Forensic Science Laboratory on 22.11.2016 and recorded entry of the same in the concerned G.D. and after completing the investigation, filed charge-sheet Exhibit Ka-5 against the accused at aforesaid crime number under aforesaid sections of N.D.P.S. Act. Consequently, the accused was heard on point of charge and charge under Section-21/22 N.D.P.S. Act was framed against the accused. Charge was read over and explained to the accused, who denied the charge and claimed to be tried.

The prosecution produced in all four witnesses. PW-1 is the Informant Hari Vilas. He effectuated arrest and seized the narcotic substance from the accused and has proved the process. Constable, Dharmendra Singh PW-2 is also witness of fact and he accompanied PW-1 and arrest

was made in his presence, he brought on the spot the electronic weighing equipment and has also proved the proper sampling of the recovered substance. PW-3, Indramohan Badola is the Investigating Officer, he has proved the investigation. S.I. Rajesh Kumar PW-4 has recorded the relevant entry in the concerned FIR and the concerned G.D.

Evidence for the prosecution was closed and the statement of the accused was recorded under Section 313 Cr.P.C. wherein he described various reasons for his false implication and submitted that the villagers on account of enmity have colluded with the police and he has been falsely implicated in this case.

The trial court after vetting the merit of the case and evaluating the testimony on record vis-a-vis facts and circumstances of this case returned aforesaid finding of conviction and sentenced the appellant to ten years rigorous imprisonment with fine Rs.1,00,000/- and in default of payment in payment of fine, he was directed to serve additional one year simple imprisonment.

It has been vehemently claimed on behalf of the appellant that in this case the mandatory compliance of Section-50 of the N.D.P.S. Act has not been done and the fact is that the investigation was done by the informant himself, which by no stretch of imagination can be said to

be either prescribed under the law or has the sanction of legal authority. He did not obtain any order from any superior officer for carrying out investigation. He has himself stated that parcha no.1 was entered by him and he recorded statement of the accused. He further claimed that there is no independent witness to the factum of arrest and recovery. All the police personnel have manipulated things and the appellant has been falsely implicated on account of village partibandi.

In view of above, the moot point that arises for adjudication of this appeal relates to fact, whether the prosecution has been able to prove charge under Section 21/22 N.D.P.S. Act against the appellant beyond all reasonable doubt. Here, in this case, the testimony of PW-1 and PW-2 say Hari Vilas-the informant and Constable Dharmendra Singh is reflective of fact that on 5.9.2016 around 6:15 in the morning, the informant along with other police personnel including Constable Dharmendra Singh was on routine checking of platform/trains and the waiting room, when he received tip-off information from an informer that some person is sitting under shed near the recreation room between platform no.2 and 3,

whereupon, the informant along with police personnel-ConstableDharmendraSinghand Constable Kamal Singh-arrived at the spot and at the pointing out of the informer apprehended the accused after using little force and on being asked the accused told that he is possessing alprazolam powder, then after complying the mandatory provisions and after suggesting the accused that he has every right to be searched in presence of a Magistrate or a Gazetted Officer and after the accused reposed faith in the police party itself for being searched, consenting letter was prepared on the spot by the informant PW-1, which is Exhibit Ka-2 on record, thereafter, search was carried out then the alprazolam powder which was kept in polythene in a bag held by the accused in his right hand was recovered from the possession of the accused. On being asked about the authority to keep the same, he did not show any authority, therefore, after complying with the constitutional rights of the accused and keeping in mind various directions issued by the Human Right Commission and after sealing the recovered substance on the spot, the accused was taken into custody. Since, the general public, which had collected on the spot were basically passengers, therefore, they declined to be a witness to the factum of arrest and recovery.

and recovery memo Exhibit Ka-1 at Case Crime No.349 of 2016 under Sections 21/22 of the N.D.P.S. Act. and a case was registered against the accused in the concerned General Diary, copies whereof are Exhibit Ka-6 and Exhibit Ka-7, respectively. Record further reflects that the sealed substance, which was recovered from the possession of the appellant was sent by the Investigating Officer PW-3-Indramohan Badola for chemical examination through Constable Chunnu Lal. About 20 grams of the recovered substance was sent as sample and after receipt of the same from the Forensic Laboratory, the relevant entry was made by the Investigating Officer in the concerned General Diary and Forensic Science Laboratory submitted its report dated 8.11.2016, wherein the result of the test was noted to be alprazolam substance. The contention raised to the extent that in this case, the investigation was conducted by the informant himself does not hold good for the reason that no other police officer of the category required for investigating into the case was available at the Police Station G.R.P. on 15.9.2016, therefore, if some relevant entry was made by the informant himself being necessary formalities that would not be prejudiced to the case of the prosecution, however, the investigation was taken over by Indramohan Badola PW-3, who infact recorded the statement of the informant and other police constable, who facilitated sending of the sample to the Forensic Science Laboratory through Constable Chunnu Lal,

therefore, part investigation confined to parcha no.1 would not ifso-facto be a ground for throwing away the case of the prosecution. In so far as the mandatory compliance of provisions of Section-50 is concerned, in this regard, it is gathered that all the necessary formalities were gone into by the informant and the police personnel accompanying him. The accused was apprised of his right to be searched in the presence of a Magistrate or a Gazetted Officer and after his refusal on the ground that he reposed faith in the police party itself, his search was carried out after preparation of the consenting letter- Exhibit Ka-2. The recovered substance was kept under seal on the spot and after separating 20 grams of sample out of the recovered substance, the accused was taken into custody, therefore, it cannot be said that there is violation of the mandatory compliance of the provisions contained under Section-50 of the N.D.P.S. Act. Whatever, little irregularity may be seen, it was due to the latches committed by the Investigating Oficer, but that alone would not be fair enough for contemplatingasituationthatnothing incriminating was recovered from the possession of the accused. The trial court has rightly taken note of the various aspects of this case, both legal as well as factual and has recorded just finding of conviction which finding of conviction needs no interference, at this juncture. The judgment and order of the trial court dated 18.7.2017 is hereby affirmed.

Sri Rajesh Kumar Singh, learned Amicus Curiae for the appellant has rendered valuable assistance in deciding the appeal, which is pending since 2017, therefore, he is directed to be paid Rs.10,000/- as his fees.

Santosh @ Bhure v. State of U.P.

Case brief

What is this about?

What did the court decide?

Santosh @ Bhure 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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