Dismissed

Satyendra v. Union of India Thru Intelligence Officer

Allahabad HC6 Dec 2021CRLA/344/2017

Case brief

AI extract

What is this about?

Appeal against conviction under Section 8/20(II)(C) NDPS Act for transporting 329.66 kg of ganja. The court rejected the plea that non-production of the independent seizure witness and non-compliance with Sections 52, 55 and 57 NDPS Act vitiated the recovery, held the NCB officials' testimony trustworthy and the statutory presumptions under Sections 35/54 applicable, and dismissed the appeal.

What the court decided

AI extract

Satyendra Vs Union of India Thru Intelligence Officer — Narcotics (NDPS) | Allahabad HC (2021)

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Reserved on 29.10.2021 Delivered on 06.12.2021

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Court No.- 87

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Case :- CRIMINAL APPEAL No. - 344 of 2017

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Appellant :- Satyendra Respondent :- Union Of India Thru Intelligence Officer Counsel for Appellant :- Dharmendra Pratap Singh,Anand Bhaskar Srivastava,Kartikeya Saran,Shagun K. Saran Counsel for Respondent :- Sanjay Kumar Singh,Ashish Pandey,G.A.

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Hon'ble Mrs. Sadhna Rani (Thakur),J.

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Challenge in this appeal is to the judgment and order dated 28.11.2016 passed by Additional Sessions Judge, Auraiya in Special Sessions Trial No.3 of 2016 arising out of NCB Lucknow Case No.4 of 2015, State Vs. Satyendra under Section 8/20 (II) (C) of N.D.P.S. Act, 1985 Narcotics Control Bureau Regional Unit Lucknow. By the impugned judgment and order, the appellant is convicted under Section 8/20 (II) (C) of the NDPS Act, 1985 and sentenced for 14 years rigorous imprisonment with fine of Rs 2 lakhs/- in default of payment of fine to undergo two years of further simple imprisonment.

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The facts germane to this appeal are that on 20.02.2016 the Intelligence Officer of N.C.B., Lucknow filed a complaint Special Criminal Case No. 3 of 2016, NCB Lucknow Case No. 4 of 2015 in the court of District & Sessions Judge, Auraiya against the appellantSatyendra S/o Gyan Singh under Sections 8/20/27A/29/49 of N.D.P.S. Act, 1985. The complainant is an Intelligence Officer of Narcotics

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Control Bureau having its Zonal Office at B-912, Sector- A, CID Colony Mahanagar, Lucknow and as such a public servant and in discharge of his duty as per Order F. No. NCB/ SEIZ/ LZU/4/2015-1062 dated 08.09.2015 has filed this complaint.

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The facts of the complaint in nutshell are that Sri Mohd. Nawab Superintendent, NCB Zonal Unit Lucknow received a secret information from Sri Ajay Kumar Pathak, SHO, P.S.- Ajitmal, District Auraiya (U.P.) on 31.08.2015 at 09:35 hours that a person named Satyendra carrying a huge amount of ganja in his vehicle Registration No. DL- 3CBM3602 from Kanpur to New Delhi has met an accident near Puja Dhaba, P.S. Ajitmal District Auraiya (U.P.). After recording this information in writing and passing the same to the higher authorities as per direction of Zonal Director Lucknow, a team comprising of Sri K.S. Ahmed, Intelligence Officer (Seizing Officer), Mohd. Nawab, Supdt Sri Jitendra Pratap Singh, Intelligence Officer Sri Vikas sipoy and Sri Bijendra Kumar driver was constituted and after obtaining permission of Zonal Director this team left NCB office by Official vehicle at about 10:00 hours on 31.08.2015 and reached near Puja Dhaba, P.S. Ajitmal, District Auraiya (UP) at about 15:00 hours. The team met SHO, P.S. Ajitmal, Auraiya, who was present on the spot with his team. He narrated about the accident, showed accidental vehicle Skoda Laura Registration No.DL 3CBM 3602, which was parked aside road after accident. The NBC team saw plenty of packets in green, blue and Yellow coloured polythene scattered in the car and smell of ganja was coming from them. The

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vehicle driver Satyendra was also present there. After that, the NCB team contacted available persons for independent witnesses but only one of them Sri Ajeem S/o Abdul Kareem agreed to be the independent public witness, he was apprised with information available with the team and introduced with the team and requested to be present there as independent witness. During search and seizure operation, the driver of the car Satyendra was informed that his personal search and search of the vehicle are to be conducted. He may the take search of NCB team and police team before his personal search and search of his vehicle. He was informed in writing that it is his legal right to get his personal search done before Magistrate or Gazetted Officer under Section 50 of N.D.P.S. Act to which he declined in writing and offered his personal search and search of his vehicle by NCB team in presence of police team and independent public witness.

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Then Satyendra was personally searched by the team and one Samsung mobile was found from the right pocket of his trouser. During search of vehicle total 151 packets of approximately same size in blue, yellow and green colour polythenes were recovered. One of these packets was cut open and the material therein was tested with the help of drug detection kit and this material was found positive for ganja. Some more packets were cut open and material therein was also found to be the same i.e. ganja. Accused Satyendra accepted that in all the 151 packets the material kept is ganja, which he collected from one Kaliya of Orissa at Punch Dhaba, Kanpur at 20.30 hours on 30.08.2015 and this material

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alongwith the vehicle was to be delivered to one Sonu at Delhi, who used to work for Rajesh Sharma.

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Due to gathering of too much crowd there the NCB team alongwith Satyendra, his Skoda Car, recovered items, police team and one independent witness reached at the police station Ajitmal, District Auraiya at about 16.30 hours for further necessary proceedings. All these 151 packets were weighed separately with electronic weighing machine and it was found about 2kgs each. All the packets were cut open and the material contained inside was tested with drug detection kit and was found positive for ganja. Thereafter, 22 samples were drawn from all the packets and all the packets were put in 11 gunny bags and stitched. All the bags were wrapped in white tericott cloth. The same were sealed with NCB Seal No.18 and were serially marked as P1 to P11. Total weight of 11 guny bags was 329.66 kgs. A small amount of ganja was taken from each ganja bags and two representative samples of 24 gms each from each of the gunny bags were prepared in brown colour envelope duly sealed with NCB Seal No. 18 and were marked as P-1. S-1 to P-11. S-2. The car Registration No. DL 3CBM 3602 was also seized. The process of search and seizure was started at 15:00 hours and concluded at 19:00 hours on 31.08.2015 peacefully. The recovery memos, samples, all the packets and documents were signed by the NCB officers, independent public witness, police team and the accused Satyendra. The facsimile seal of NCB Seal No. 18 was put on the last page of recovery memo. A copy of the memo was handed over to the accused Satyendra.

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Voluntary statement of independent public witness Ajeem S/O Abdul Kareem and accused Satyendra were recorded under Section 67 of N.D.P.S. Act, 1985 on 31.08.2015. In his statement, the accused admitted his involvement in illicit trafficking of above seized ganja. After statement the accused was put under arrest for the violation of Section 8/20/27A/29/49 of NDPS Act, 1985 on 31.08.2015 at about 20:30 hours.

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Arrested person Satyendra, samples, remaining seized ganja, seized vehicle, other seized articles and documents were produced before the Additional District and Sessiosn Judge court No.I, Auraiya on 01.09.2015. The accused was remanded and sent to District Jail Etawah in judicial custody. Packets of seized drug (total 329.66 kgs of ganja), seized vehicle DL 3C BM 3602 with the key were deposited in the Official godown of P.S. Ajitmal, Auraiya with the permission of Additional District and Sessions Judge Court No.I, Auraiya dated 01.09.2015 and samples P-1. S-1 to P-11. S-2 drawn from the above seized ganja were deposited in official godown of NCB, Lucknow. The detailed report under Section 57 NDPS Act was submitted to the Zonal Director, NCB, Lucknow on 02.09.2015.

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The samples P-1. S-1 to P-11. S-1 drawn from the above seized ganja were sent to Chief Chemical Examiner, CRCL, New Delhi for chemical examination on 02.09.2015 wherein the samples were found positive for ganja vide report dated 21.09.2015.

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Second voluntary statement under Section 67 NDPS Act of Satyendra S/O Gyan Singh was recorded on 23.09.2015 in Etawah Jail,

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after obtaining the due permission.

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Accused -Satyendra in his statement dated 31.08.2015 disclosed that the owner of the seized vehicle DL 3C BM 3602 (Skoda Laura) is one Balram Sharma of Delhi. This information was confirmed by the Motor licensing Officer, South Zone; New Delhi. The call details of Satyendra's mobile showed that there were 17 calls between numbers 8527835923 and 8586087704 on 31.08.2015 between 6.50 AM to 8.45 AM. The mobile no. 8586087704 was found to be registered in the name of Balram Sharma of Delhi. Accordingly, summons were sent to him on 17.09.2015 but he did not appear and submitted some documents that he had sold the vehicle to Satyendra Kumar on 03.08.2015 when the documents were verified the vehicle was still found registered in the name of Balram Sharma. Then, second summons alongwith letter were sent to Balram Sharma on 28.10.2015 to depose his statement but he did not appear. Third, summons dated 30.11.2015 were sent to him and when he did not turn up then a team visited the residence of Balram Sharma at F-20, Desu Colony, R.P. Bagh, Delhi on 30.11.2015 where his wife Upma Sharma was present, who intimated that Balram Sharma was not at home for last 20 days. Then summons in the name of Balram Sharma were handed over to Upma Sharma. NBWs were also issued but Balram Sharma did not appear so the case against him was kept open.

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Accused Satyendra in his statement dated 31.10.2015 and 23.09.2015 disclosed that he was doing illicit trafficking of ganja for one Rajesh Sharma of Govind Puram, Ghaziabad, UP and he received the

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recovered ganja from Kaliya of Orissa on the directions of Rajesh Sharma. Summons were issued to Rajesh Sharma but the same returned due to insufficient address. Satyendra could not give complete address of Rajesh Sharma. The mobile number of Rajesh Sharma supplied by Satyendra was found registered in the name of Balram Sharma and the case was kept open against Rajesh Sharma also.

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Due to insufficient address Kaliya of Orissa and Sonu of Delhi they could not be traced out till date. However, further investigation against these both was also kept open. Other persons whose name came forward during the investigation could not be traced out. Thus, by filing this complaint on the basis of above facts and circumstances and evidences Satyendra S/O Gyan Singh was prayed to be tried up under Section 8/20/27A/29/ 49 of NDPS Act. Prayer for confiscation of seized drug and vehicle was also made.

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After receiving the complaint, the court took cognizance and summoned the accused Satyendra on 11.05.2016 and charge under Section 8/20(II) (C) of N.D.P.S. Act, 1985 was framed against the accused Satyendra, who denied the charge and pleaded to be tried. To bring home the guilt of accused the prosecution produced as many as five witnesses-

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PW-1 Kunwar Shakeel Ahmed, Intelligence Officer, NCB Zonal Office, Lucknow, who is the seizing officer.

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PW-2 Vivek Kumar Surveillance Assistant, who deposited the samples of the contraband substance at the Central Revenues Control Laboratory,

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New Delhi.

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PW-3 Sri J.P. Singh, Intelligence Officer NCB, Zonal Office Lucknow, who was the member of seizing team.

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PW-4 Mukesh Kumar Gautam, Assistant Chemical Examiner, who proved the Central Revenues, Central Laboratory Reports.

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PW-5 Ashish Kumar, Intelligence Officer, NCB Lucknow, who investigated the present case.

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As Documentary evidence, the prosecution produced Form NCB -I as Exhibit-ka 1, notice to accused- Satyendra as Exhibit ka- 2, written consent of the accused Satyendra as Exhibit ka- 3, signatures of independent witness Ajeem on this consent as Exhibit- ka 4, recovery memo as Exhibit- ka 5, facsimile seal as Exhibit- ka 6, original inventory as Exhibit- ka 7, statement of accused Satyendra as Exhibit- ka 8, arrest memo of accused Satyendra as Exhibit -ka 9, left hand finger impressions of the accused as Exhibit- ka 10, right hand finger impression of the accused as Exhibit- ka-11, jama talashi memo of accused Satyendra as Exhibit- ka 12, original statement of witness Ajeem as Exhibit- ka 13, receiving of sample by the Vivek Kumar Surveillance Assistant as Exhibit- ka 14, signatures of Sealing Officer and witness Ajeem, on the statement of Ajeem as Exhibits- ka 15 and 16 respectively, copy of godown register as Exhibit- ka 17, the Central Revenues Control Laboratory sample receipt as Exhibit- ka 18, test memo as Exhibit A 19, report of Assistant Chemical Examiner as Exhibit- ka 20, signature of the Chemical Examiner as Exhibit- ka 21, permission to take statement of

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accused Satendra in jail as Exhibit- ka 22, statement of accused Satyendra under N.D.P.S. Act as Exhibit -ka 23, signature of Investigating Officer Ashish on this statement as Exhibit- ka 24, report of CRCL as Exhibit- ka 25 and receiving of accused Satyendra on the same as Exhibit- ka 26, complaint by Intelligence Officer as Exhibit- ka 27, list of witnesses as Exhibit- ka 28, list of documents as Exhibit- ka 29.

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As material evidence the prosecution produced mobile recovered from the accused Satyendra as material Exhibit-1, sealed 11 bags containing 151 packets inside as material Exhibit-2 to 12, twenty two envelopes containing 22 samples as material Exhibit-13 to 34, eleven packets of recovered contraband as material Exhibit- 35 to 45, 151 separate packets as material Exhibit- 46 to 196.

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After prosecution evidence, the statement of accused Satyendra was recorded under Section 313 Cr.P.C., wherein he denied all the oral, documentary evidence against him and the material Exhibits produced in the court and contended that his vehicle Registration No. DL 3C BM 3602 Skoda had collided with the parked truck. The police of Ajitmal police station was making pressure of compromise upon him. He did not pay money to police and the truck owner so they falsely implicated him in the present matter by calling the NCB Officers and planting the false ganja.

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The accused appellant did not produce any evidence in defense, however, after holding him guilty when he was being heard on the

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quantum of sentence then he moved an application to summon the independent witness of the recovery Ajeem as defence witnesses but his application was rejected by the lower court being moved at a very late stage.

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On the basis of above evidence, the lower court being convinced with the prosecution evidence convicted appellant-Satyendra under Section 8/20 (II) (C) of N.D.P.S. Act, 1985 vide judgement and order dated 28.11.2016 and sentenced him as mentioned above.

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The present appeal has been preferred against the judgment and order dated 28.11.2016 on the premise that the impugned judgment and order is manifestly unjust, wrong, perverse, erroneous, untenable and unsustainable and it has resulted in great miscarriage of justice. Testimony of prosecution witnesses is thoroughly discrepant in material particulars. Allegations are false, fabricated and concocted. The case has been fabricated by the Bureau with an ulterior motive and for winning applause and laurels from their superiors. Recovery is said to be effected from thoroughfare place but no independent witness has been produced. There are discrepancies in the statements of prosecution witnesses and statements themselves are contradictory. Provisions of Section 52, 55 and 57 of the NDPS Act, 1985 have not been followed. The court has put blind reliance over the testimony of police officials. The evidence of police officials has not been corroborated by any independent source. The recovery of contraband from the possession of appellant is not proved.

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Link evidence is defective and also missing. The conclusion drawn by the trial court is illogical, perverse and untenable. The learned Additional Sessions Judge, Auraiya has brushed aside the authorities produced by the defence on wholly untenable premises and has chosen to rely upon the distinguishable authorities produced by the prosecution. The lower court has drawn adverse inference against the appellant from the fact that he had simply denied the allegations of the prosecution and had pleaded false implication. The statement of the appellant had not properly recorded under Section 313 Cr.P.C. The link evidence in this case was not put to him. Some other incriminating circumstances, which had been used against the appellants were also not put to him for explanation under Section 313 Cr.P.C. Thus, a grave miscarriage of justice had been taken place to the appellant. Investigation of the case was tainted, partial and biased. The lacunas and infirmities of the prosecution are totally ignored by the learned trial court. It would be a travesty of justice if the accused is convicted on the basis of testimony of a lower rank police officials. Moreover, no Gazetted Officer as well as the Magistrate was called at the time of alleged recovery. The prosecution had miserably failed to establish the charge against the appellant beyond the shadow of reasonable doubt. He is totally innocent and is falsely implicated in the present case. Appellant is behind the bars since 31.08.2015. The sentence awarded to the appellant is too severe in nature. Hence, his appeal be allowed and the impugned judgment dated 28.11.2016 be set aside.

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The counter affidavit has been filed on behalf of opposite party and

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is contended that the accused has been rightly and legally convicted on the basis of material facts and evidence on record considering all aspect of the matter in the light of settled law laid down by the Apex Court. The presumptions and findings recorded by the trial court while convicting the appellant are fully sustainable in the eyes of law. The prosecution has proved its case beyond reasonable doubt from all the corners. There is no material contradiction or discrepancy in the testimony of the prosecution witnesses. The appellant is not entitled for any sympathetical consideration. The absence of any independent witness shall not vitiate the prosecution case as the huge quantity of 329.66 kgs. ganja has been recovered from the conscious and constructive possession of the appellant, which cannot be planted. Presumption under Section 35 read with Section 54 of N.D.P.S. Act, 1985 shall be drawn against the appellant and in view of the law laid down by the Apex Court burden lies upon the accused to prove his innocence, which he could not prove. Unconcerned people do not dare to appear against the criminals and traffickers. The public witnesses avoid to come forward. The provision of Sections 52, 55, 57 of the N.D.P.S. Act have been fully complied with in true sense and spirit of law. The learned trial court has also recorded its finding in respect of the compliance of these provisions. The statements recorded under Section 67 of N.D.P.S. Act are admissible in evidence and shall not be hit by section 25 and 26 of the Indian Evidence Act. After search and seizure of the case, the statement of the appellant was recorded under Section 67 of N.D.P.S. Act and thereafter he was arrested

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on reasonable belief and bonafide satisfaction of the officers that the appellant was deliberately and knowingly indulged in illicit trafficking of the contraband . The unretracted statement of the appellant is also admissible in evidence. It is not specified by the appellant that which incriminating circumstance was not put to him in his statement under Section 313 Cr.P.C. Hence, the prosecution has proved its case beyond reasonable doubt while appellant has failed to prove his innocence. The sentence awarded to the appellant is in accordance with law and in proportionate to the gravity of the offence as provided under NDPS Act.

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The appellant has filed rejoinder affidavit and reiterated the facts and grounds mentioned earlier. It is also contended that in his statements dated 31.08.2015 and 23.09.2015 recorded under Section 67 of N.D.P.S. Act he gave detailed information about the supply but on the basis of that information no investigation was carried out. The R.T.O. concerned provided information that vehicle belongs to Balram Sharma but this Balram Sharma was never contacted by the Investigating Officer. The alleged independent witness Ajeem has not been produced in the Court. The trial court has misconstrued the evidence produced by the prosecution and recorded perverse finding regarding compliance of Sections 52, 55 and 47 of N.D.P.S. Act. The trial court completely failed to appreciate the evidence produced by the prosecution and convicted the appellant on the basis of perverse finding. Hence, the appeal of the appellant deserves to be allowed.

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Heard Sri Pawan Kumar, learned counsel for the appellant, Sri Ashish Pandey learned counsel for the respondent and Sri S.S. Tiwari and Sri K.K. Nishad, learned A.G.A. Perused the record.

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It is argued by the learned counsel for the appellant that the court has blindly relied upon the contradictory and defective evidence of police personnel. Ajay Kumar Pathak, SHO, P.S.- Ajitmal, District Auraiya and independent witness Ajeem have not been produced.

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From the perusal of the file, it is found that at the time of recovery one independent witness Ajeem came forward and in his presence all the proceedings of recovery, preparing documents and sealing of contraband etc. were made. The statement of independent witness Ajeem was also recorded by the prosecution at the time of recovery but he has not been produced in the court. In this regard, learned counsel for the respondent has placed reliance on the decision of Apex Court in the case of M Prabhu Lal Vs. Deputy Director of D.R.I. reported in (2003) 8 Supreme Court Cases 449 and argued that merely by non production of independent witness in seizing under N.D.P.S. Act the prosecution facts shall not be vitiated.

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The Apex Court in Ajmer Singh Vs. State of Haryana in Criminal Appeal No.436 of 2009 reported in (2010) 3 SCC 746 has opined that if at the time of recovery of contraband no independent witness was present such absence is only an irregularity and it does not vitiate the prosecution itself. It was found by the Apex Court that since the prosecution had established in the circumstances of the case no such witness could be

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procured in spite of serious attempt by the prosecution the arrest and recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of police officer was believable after taking due care and caution in evaluating their evidence.

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In the present case though the police succeeded in getting one independent witness Ajeem at the time of recovery but the same has not been produced in the court.

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The Apex Court in Kashmiri Lal Vs. State of Haryana in Criminal Appeal No. 1576 of 2009 reported in (2013) 6 SCC 595 held that ordinarily public at large show their disinclination to come forward to become witness there is no absolute command of law that police officer cannot be cited as witnesses and their testimony should also be treated with suspicion. If the testimony of police officer is found to be reliable and trustworthy the court can definitely act upon the same.

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Thus, if the other evidence produced in the court is found to be reliable the absence of independent witness will not vitiate the prosecution case.

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If we go through the lower court record and the evidence produced by the prosecution, we find that PW-1 Kunwar Shakeel Ahmed and PW-3 Shri J.P. Singh are the witnesses of fact, who have proved the recovery. Both of them have stated in their statements that on 31.08.2015 when they were working in the NCB Zonal Office, Lucknow Superintendent of NBC Zonal Unit, Lucknow called them as he had received information

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that the present appellant was carrying huge amount of ganja in vehicle Registration No. DL3CBM3602 from Kanpur to Delhi. He formed a team consisting of Superintendent Mohd. Nawab himself, PW-1 Kuwar Shakeel Intelligence Officer, J.P. Singh Intelligence Officer and Constable Vikas and driver Bijendra Kumar and after getting permission from the Zonal Director, Sri Virendra Kumar they reached at the spot by their Official vehicle at 15:00 hours where Sri Ajay Kumar Singh, SHO, PS -Ajeet Mal was present with his team. He narrated him the incident that the vehicle Registration No. DL 3C BM 3602 driven by accused Satyendra after hitting a dog met with an accident and the packets lying in the vehicle are smelling as ganja. All of them inspected the vehicle and managed to get one independent witness Ajeem. Notice under Section 50 of N.D.P.S. Act was given to the accused present on the spot. Accused was apprised of his right of being searched by some Gazetted Officer or Magistrate but he declined of this right and consented in his own writing to be searched by the NCB and police team. They also asked Satyendra to take search of them but he refused. Then the NCB team and the police team made a search of themselves. Witness Ajeem was also searched by the them. From the search of accused Satyendra one mobile phone was recovered. From the search of vehicle Registration No.DL 3CDM 3602 (Skoda) plenty of blue, green and yellow plastic packets were found scattered in car. Out of these packets, one packet was opened and checked by the drug detection kit, which was found be be ganja. Then 5-6 more packets were checked, in those packets also the ganja was found. Till then

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crowd had collected, to avoid the tension and noise at the request of NCB, SHO police station Ajitmal summoned crane and Vehicle Registration No.DL 3C DM 3602 (Skoda Laura) alongwith recovered contraband were dropped to Ajitmal Police Station. Both the teams and the witness also reached at the Ajitmal police station at 4:30 PM. These packet were counted which were 151 in number when they were weighed each packets was found to be of two kilograms. Each packet was checked by drug detection kit and in the each packet the found material was ganja. On interrogation the accused revealed that on evening of 30.08.2015, one Kalyia had supplied these packets to him in Kanpur, which were to be further supplied to Sonu in New Delhi alonghwith the vehicle. It was also disclosed that Sonu works for Rajesh Sharma. Out of these 151 packets the sample quantity of the contraband was taken and total 22 samples were prepared. 11 packets were prepared of the remaining contraband and the packets were sealed and marked as per procedure. Sample of seal was prepared. All the packets were sealed and signed by the members of both the teams accused Satyendra and witness Ajeem, PW-1 Kunwar Shakeel Ahmed prepared memo of recovery which was read over and explained to the teams of NCB, police personnel accused Satyendra and the independent witness. Department fascimile seal no.18 was used on each packet and impression of the same was marked on the recovery memo. Inventory of the recovered Skoda Car and mobile were prepared. It was also signed by the members of NCB team, police team and the witness Ajeem. Willful statement of the accused Satyendra was noted down by

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the accused himself under Section 67 NDPS Act. The accused was disclosed the reason of his arrest. His arrest memo was prepared and his finger impressions of both the hands were taken. 'Jama Talashi' memo was prepared by the witness PW-1. As witness Ajeem disclosed that he was an illiterate person so his statement was written by J.P. Singh (PW-3) which was again signed by J.P. Singh, Ajeem and Kunwar Shakeel Ahmed (P.W.-1) Sealing Officer. Because it was night so accused was kept in the Hawalat of Police Station. Recovered contrabands were deposited in the Zonal Office and noted down in the godown register. Next day the recovered materials and the accused Satyendra were produced in the court and as per procedure the case was proceeded.

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PW-2- Vivek Kumar Surveillance Assistant has proved that he received 11 samples and two test memos dated 31.08.2015 from the office on 2^nd September, 2015 and on 3^rd September, 2015 he handed over these samples under receipt to Central Revenues Control Laboratory, New Delhi and handed over this receipt on next day i.e. 04.09.2015 in the NCB Office Lucknow.

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PW-4 Mukesh Kumar Gautam, Assistant Chemical Examiner proved the report prepared by him and stated that both the reports after preparation were sent to NCB, Lucknow. These reports are proved by the witness as Exhibit-19 and 20 wherein the contraband sent for test was found to be ganja.

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PW-5 Ashish Kumar, is the Investigating Officer who after due investigation found that accused Satyendra S/o Gyan Singh has

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committed offence under Section 8/20/27A/29/49 of NDPS Act, 1985. On the basis of his investigation he filed this complaint against accused Satyendra on 20.02.2016 in the court. Against Balram Sharma, Rajesh Sharma, Kaliya and Sonu who were also reported to be involved in the offence by present accused Satyendra the Investigation was kept open. From the file, it is revealed that later on the master mind accused Balram Sharma, who is also the owner of seized car has also been arrested by the police.

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Thus, from the above discussion, it is proved that prosecution has produced the witness of recovery, who proved recovery, sealing of the contraband material, preparing documents, depositing the accused and material in the police station and godown, respectively . The recovery of contraband sent to the laboratory was found to be ganja. The investigating Officer also proved his investigation and finding accused to be guilty in the above mentioned sections he filed complaint against him. On the other hand, in compliance of Sections 35/54 of N.D.P.S. Act the accused has failed to produce any evidence in support of his innocence. Now, it is to be seen whether the evidence of police personnel can be rejected on the sole ground that being the evidence of police personnel/ the department of NCB the evidence is inadmissiable.

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The Apex Court in Full Bench in case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120 has opined that testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principal of law that

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without corroboration by independent witness his testimony cannot be relied upon. Presumption that a person acts honestly applies as much in favour of a police officer as in case of all other persons and it is not the judicial approach to distrust and suspect him without good grounds therefor. The question of prejudice or bias has to be established and not inferred. The question of bias will have to be decided on facts of each case hence if the evidence of police personnel is found trustworthy there is no bar to convict the accused on the basis of the evidence of police personnel only.

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Thus, the prosecution evidence cannot be out rightly rejected on the ground of its being the evidence of a police personnel/ team of NCB only if their evidence is found to be trustworthy then only on the ground that no independent witness has been produced the accused persons cannot claim his acquittal.

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The compliance of Sections 52, 55, 57 of N.D.P.S. Act is also claimed to be not done.

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Section 52 of the N.D.P.S Act, 1985, reads as under:-

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“52. Disposal of persons arrested and articles seized.- (1) Any officer arresting a person under section 41, section 42 section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.

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(3) Every person arrested and article seized under subsection (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to-

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(a) the officer-in-charge of the nearest police station, or

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(b) the officer empowered under section 53.

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(4) The authority or officer to whom any person or

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article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article.”

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The above section makes it mandatory that officer arresting any person under Sections 41, 42, 43, 44 of the Act shall as soon as may be informed of the grounds of such arrest. In this regard, the arrest memo of the accused as Exhibit ka-9 is on record, wherein it is mentioned that accused has been informed of his offences under Sections 8/20/27A/49 of the Act and thereby he was taken into custody.

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Further, as per sub clause (2) of this Section as soon as the person is arrested and article is seized under this Act without unnecessary delay the same shall be forwarded to the Magistrate concerned. In this connection Paper No. 18 ka is on record, which shows that on 01.09.2015 the accused and the recovered material were produced before the court concerned and the permission to send accused in the judicial custody and the recovered car and the contraband to be deposited in the malkhana was sought. The permission was granted by the court concerned on the same day i.e. on 01.09.2015.

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As per sub clause (3) of this Section, the person arrested and article seized were to be forwarded without unnecessary delay to Officer Incharge of the nearest police station.

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As per sub clause (4) of this Section, the officer to whom such person and article are forwarded with all convenient despatch take such measures as may be necessary for disposal as per law of such person or article. In this connection paper no.18 ka is on record which shows the

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endorsement of head mohrir Kamlesh Kumar regarding receiving of vehicle and 11 ganja bags containing 151 packets of ganja and by this order on paper-18 ka the accused was sent to judicial custody. As per paper no. 20 ka, Exhibit Ka-14 the samples of contraband were received by Vivek Kumar (PW-2) on 02.09.2015, who submitted the same in the Central Revenues Control Laboratory ,New Delhi on 03.09.2015. The receiving of the same on 03.09.2015 by Assistant Chemical Examiner is on record. Paper no.21 ka, Exhibit Ka-17 shows that the whole contraband samples were deposited in the godown on 31.08.2015 and the samples were sent to the CRCL, New Delhi for chemical examination on 01.09.2015. Thus, the compliance of Section 52 of the N.D.P.S. Act can be said to be done.

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So far as the Section 55 of the N.D.P.S. Act, 1985 is concerned this Section can be reproduced as under:-

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“55. Police to take charge of articles seized and delivered.-An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.”

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As per this Section, the Officer Incharge of Police Station shall

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take charge of articles seized and keep them in safe custody. As per the documents mentioned above the compliance of Sections 52 and 55 of the Act can be said to be done.

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It is also claimed that Section 57 of N.D.P.S. Act has not been

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complied with. Section 57 of the N.D.P.S. Act is reproduced as under:-

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“57. Report of arrest and seizure.-Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.”

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In this regard document paper-ka 19 is on the record, which is the compliance report under Section 57 of the Act, 1985 wherein Sri Kunwar Shakeel Ahmed the Intelligence Officer, NCB, Zonal Unit, Lucknow narrated the whole incident to Zonal Director NCB, Zonal Unit, Lucknow on 02.09.2015. On the basis of this, it can very well be said that compliance Section 57 of the Act has been done .

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Thus, from the above discussion, it is clear that the accused Satyendra was found in the possession of contraband substance which on the basis of the report of Central Revenues Control Laboratory, New Delhi was found to be ganja. The seized packets were 151 in number containing 2 Kg each thus the total quantity was more than 302 kg in comparison to the commercial quantity of 20 kg. All formalities in packing the recovered contraband substance, preparing the recovery memo, keeping the contraband substance and the arrested person in proper custody were lawfully completed. The investigation culminated into the complaint. After producing the sufficient evidence by the prosecution the accused failed to prove his innocence under Sections 35/54 of the NDPS Act. Nothing incriminatory has been put before the court that the evidence produced or the proceedings followed by the prosecution are contradictory or not in compliance of the provisions of

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the Act.

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In view of the above discussion, I found that the learned trial court has rightly placed reliance on the testimony of the prosecution witnesses and that the prosecution story stood fully proved beyond all reasonable doubt against the accused. He has been rightly found guilty for the offence punishable under Section 8/20 (II) (C) of N.D.P.S. Act, 1985. Sentence awarded is also adequate.

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The present appeal lacks merit and is, accordingly, dismissed . The conviction and sentence recorded by the learned Additional Sessions Judge, Auraiya against the accused is, hereby confirmed. Order Date :- 06.12.2021

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Radhika

Satyendra v. Union of India Thru Intelligence Officer

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Satyendra v. Union of India Thru Intelligence Officer

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