Dismissed

Virendra Kumar Sharma v. State of U.P.

Allahabad HC30 Aug 2018JAPL/5357/2013

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against conviction and sentence under the NDPS Act. The single judge affirmed the trial court's judgment, rejecting the appellant's plea that the absence of public witnesses to recovery and lack of sampling procedure vitiated the conviction, finding the evidence sufficient.

What did the court decide?

The appeal is dismissed and the judgment of the Additional Sessions Judge is affirmed.

Virendra Kumar Sharma Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2018)

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Court No. - 42
Case :- JAIL APPEAL No. - 5357 of 2013

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Appellant :- Virendra Kumar Sharma
Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Vijay Shanker
Counsel for Respondent :- A.G.A.

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Hon'ble Arvind Kumar Mishra-I, J.

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Heard Ms. Ranjana Singh, 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 appeal.

¶6

By way of instant jail appeal, challenge has
been made to the validity and sustainability of
the judgment and order dated 19.09.2013 passed
by Additional Sessions Judge, court no.- 5
Varanasi in Special Sessions Trial No.54 of
2013, under Section 8/21 N.D.P.S. Act, Police
Station- Chowk, District- Varanasi sentencing
him 10 years rigorous imprisonment with a fine
of Rs.1,00,000/- with default stipulation for
one year imprisonment.

¶7

 The relevant facts of this case appear to
be that the appellant was apprehended by the
police on 07.01.2013 around 10.15 A.M. at a
distance of 500 meters from Bibi Razia Maszid by
S.I. Ashok Kumar and the other accompanying
police personnel while they were busy in
patrolling duty on 07.01.2013. They sighted
appellant, who was carrying one bundle in his
both hands. As soon asthe police sighted him,
he turned back and began to run away from the

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scene. This created suspicion against him. The
police party gave chase to him, whereupon, he
was apprehended near the the shop of Sri
Vishwanath Falahar around 10.15 A.M., when asked
by the police party as to why he was fleeing
away from the scene, he told that he is
possessing intoxicated tablets. On inquiry being
made, he spelt his name Virendra Sharma s/o
Batuk Nath Sharma, r/o Sujabad, police station-
Ram Nagar, District Varanasi. At the disclosure
made by the appellant, he was suggested whether
he would be interested in getting himself
searched before a Gazetted Officer or a
Magistrate, whereupon accused expressed his
desire to be searched by the police party
itself. Thereafter, police party prepared the
consenting letter and search was made of
Virendra Sharma (accused) and alleged to be
recovered one carry bag in the right hand
containing 20 raper of 60-60 tablets of Alprquil
0.5 mg total a number of 1200 pills, which was
got weighed by the balancing equipment arranged
from the shop of Vishwanath Falahar, then it
weighed 246 gram. On being asked about any
authority to keep the same with him, he could
not show any document for keeping these noxious
tablets. Therefore, he was taken into custody
after complying the mandate of Human Rights
Commission and various directions of the Apex
Court. The recovered substance was kept back in
the carry bag and was sealed on the spot and

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specimen seal was prepared. The accused was
arrested and relevant formalities were gone
into. No public witness agreed to stand witness
to the fact of recovery and arrest. The memo of
arrest and recovery was prepared on the spot.

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On the basis of recovery memo (Exhibit Ka-
2), case was registered at Police Station-
Chowk, District- Varanasi at 11.30 A.M., the
very same day on 07.01.2013 at Case Crime
No.2/13, under Section 8/21 N.D.P.S. Act, Police
Station- Chowk, District- Varanasi.

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Contents of aforesaid report were taken down in
the concerned General Diary of date 07.01.2013 at
11.30 p.m. at Police Station- Chowk, District-
Varanasi. The relevant General Diary entry is
Exhibit Ka-7.

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The investigation ensued and the same was
taken over by P.W.2 S.I. Ramesh Prasad, who took
note of the relevant documents and recorded
statement of the prosecution witnesses, prepared
site plan, Exhibit Ka-4. He also took note of
content of the Analyst Report and after
completing the investigation filed the charge-
sheet, Exhibit Ka-5 against the accused-
appellant.

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Consequent thereupon, the case was transferred
for conduction of trial to the Court of Additional
Sessions Judge, court no.5, Varanasi where the
accused was heard on point of charge and prima
facie ground was found existing for framing charge
under Section 8/21 N.D.P.S. Act. The charge was

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read over and explained to the accused, who abjured
charge and opted for trial.

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Thereafter, the prosecution was asked to adduce
its testimony, whereupon the prosecution examined
as many as four witnesses on its behalf. Brief
sketch of the same is being made herein below:

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Ashok Kumar Tripathi P.W.1 is the informant
in this case. Ramesh Prasad P.W.2 is the
Investigating Officer. Constable Umesh Singh
P.W.3 is the witness of fact of arrest and
recovery memo. Azad Babu P.W.4 has proved the
Check FIR and relevant GD entry.

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Thereafter, statement of the accused was
recorded under Section 313 Cr.P.C., wherein
various reasons were described for false
implication and innocence was claimed.

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The defence did not lead any evidence,
whatsoever.

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The trial court after hearing both the sides on
the merit of the case and after appraising facts
and evaluating the testimony on record, returned
finding of conviction against the accused and
sentenced him accordingly, as above.

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Consequently, this appeal.

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It has been vehemently claimed on behalf of the
appellants that in this case all the mandatory
provisions as required under Section 50 of the
N.D.P.S. Act has not been complied by the police
party. Nothing incriminating was recovered from
the possession of the appellant. The fact of
arrest and recovery is not supported by any

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independent testimony of any public witness.
There is no mention in the recovery memo about
any sampling of the substance recovered on the
spot as to how it was done, then how the sample
or the substance was sent for Chemical
Examination Report. The trial court while
sentencing the appellant ignoring this aspect
there is no criminal antecedent to the
appellant. Appellant has already suffered more
than half of the sentence in detention in this
case. All the witnesses are interested and
partisan witness as they being police personnel.

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Per contra, learned A.G.A. has submitted that
the prosecution has succeeded in proving the charge
against the appellant beyond all reasonable doubts.
All the prosecution witnesses of fact consistently
supported the prosecution case as spelt out in the
first information report. The conviction of the
appellant recorded by the trial court is based on
cogent evidence and the sentence awarded to him is
supported by the relevant considerations. The
impugned judgment and order does not suffer from
any illegality or perversity requiring any
interference by this Court and in this view of the
matter, the appeal being devoid of any merit is
liable to be dismissed.

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Also considered the above submissions.

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Bare perusal of the Check FIR- Exhibit Ka-6-

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is indicative of fact that in this case the
police party while on patrolling duty on
7.1.2013 sighted the accused somewhere near the
Bibi Razia Maszid and near the shop of

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Vishwanath Falahar, the accused was apprehended,
whereupon the noxious substance kept inside the
bag was recovered from his possession. He was
offered by the police to be searched before any
Gazetted Officer or a Magistrate, whereupon, the
accused reposed faith on the police party itself
and agreed to be searched by the police party.
Search was made and the noxious tablets weighing
246 gram was recovered from his possession,
which on counting aggregated to 1200 pills.

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Record is reflective of fact that in this
case report of Vidhi Vigyan Progshyala, U.P.,
Ram Nagar, Varanasi dated 22.01.2013, wherein
the recovered substance were found to be
'Alpraquil 0.5 mg'. The report of Vidhi Vigyan
Progshyala (Exhibit Ka-9) reflects that the
weight of the recovered substance 144 gram.

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In so far as testimony of the prosecution
witnesses is concerned, admittedly, all the
prosecution witnesses are police personnel, but
merely because they are police personnel alone,
would not be sufficient to discard their
testimony and it cannot be considered to be so
and would not render the testimony inadmissible
on that count alone.

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Ashok Kumar Tripathi P.W.1 has described the
entire incident and he has virtually proved the
first information report and the fact of
recovery of noxious substance from the
possession of the accused. He has also proved
the fact that offer to be searched before the

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Gazetted Officer was also given to the accused
and consenting letter was prepared on the spot.
This arresting memo was signed apart from the
police personnel by the accused himself. The
consenting letter was proved as Exhibit Ka-1. He
has also proved recovery memo Exhibit Ka-2.
Signature of the accused on the memo of arrest
has been proved in the shape of Exhibit Ka-3. He
has testified to the ambit that in this case
looking to the quantity of the substance
recovered, the sample was not taken and the
entire substance was sent for chemical
examination.

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Similarly, S.I. Ramesh Prasad P.W.2 has also
proved the site plan Exhibit Ka-4, wherein the
place of occurrence has been shown with
certainty and marked by Alphabet 'A' . Similarly
other places have also been shown in the site
plan where the accused was apprehended. He has
also proved filing of the charge sheet- Exhibit
Ka-5.

¶39

Apart from testimony of the I.O. Ramesh
Prasad P.W.2 another witness of the fact
Constable Umesh Singh P.W.3 has corroborated
testimony of Ashok Kumar Tripathi P.W.1 and has
virtually proved fact of arrest and recovery
made from the possession of the accused. He has
been cross-examined at length, wherein nothing
adverse has surfaced. However, he has expressed
his ignorance about sampling of the contraband
recovered from the possession of the accused. He

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has denied the suggestion that there was any
anomaly in the recovered substance from the
accused.

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P.W.4 Azad Babu is the formal witness. He
has proved the check FIR- Exhibit Ka-6 and G.D.
Entry- Exhibit Ka-7 against the accused. Apart
from that he has also proved conveyance of
recovered contraband substance to the Vidhi
Vigyan Progshyala and has proved the concerned
letter- Exhibit Ka-8 and Examination report- of
Vidhi Vigyan Prayogshala- Exhibit Ka-9.

¶43

The above critical scrutiny regarding the
evidence, facts and circumstances of the case goes
to unravel the truth in favour of the prosecution
that it has successfully proved the occurrence to
have been caused by the appellant on 7.1.2013 at
10.15 A.M. at Police Station- Chowk, district-
Varanasi, whereby, appellant was caught by the
police party with alleged contraband weighing 144
Gram Alpraquil 0.5 gram from the possession of the
appellant- and consequently, the scrutiny and
analogy of facts and circumstances of the case by
the trial court on the merit of the case is
justified and the trial court took right note of
the occurrence and rightly recorded conviction
under Sections 8/21 N.D.P.S. Act, which conviction
is found to be based on material on record and
justified under facts and circumstances of the case
and needs no interference instead the same is
affirmed at this stage.

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For the aforesaid specific reason, judgment
and order dated 19.09.2013 passed by Additional

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Sessions Judge, court no.- 5 Varanasi in Special
Sessions Trial No.54 of 2013, under Section
8/21 N.D.P.S. Act, Police Station- Chowk,
District Varanasi is affirmed.

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Consequently, this appeal lacks merits and
the same is hereby dismissed.

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Let a copy of this order be certified to the
concerned trial court for its intimation and
follow up action.

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Dt.30.08.2018

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Raj

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Virendra Kumar Sharma v. State of U.P.

Case brief

What is this about?

What did the court decide?

Virendra Kumar Sharma v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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