Dismissed

Sarfraz v. State of U.P.

Allahabad HC7 Jan 2022JAPL/89/2019

Case brief

AI extract

What is this about?

This court dismissed jail appeals filed by two appellants convicted under Sections 8/21 of the NDPS Act for possessing alprazolam. The High Court held that the acquisition of contraband from an open railway station platform was a chance recovery not attracting mandatory provisions for search warrants or written reports, and that the prosecution evidence was reliable and trustworthy despite the lac

What did the court decide?

The dismissal of the jail appeals; confirmation of the conviction and sentence by the Additional Sessions Judge, Agra; confirmation that the appellants are guilty of possessing narcotic drugs.

Sarfraz Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2022)

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Court No. - 87

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Case :- JAIL APPEAL No. - 89 of 2019

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Appellant :- Sarfraz Respondent :- State of U.P. Counsel for Appellant :- From Jail, Ajay Kumar Srivastava, Anil Kumar Tripathi, Shyam Kumar Verma Counsel for Respondent :- A.G.A.

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WITH

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Case :- JAIL APPEAL No. - 72 of 2020

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Appellant :- Suresh Kumar Respondent :- State of U.P. Counsel for Appellant :- From Jail,Shyam Kumar Verma Counsel for Respondent :- A.G.A.

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

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As both the above appeals arise from the same judgement and order dated 24.01.2019, hence both are being decided by a common judgement.

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The present appeals have been preferred against the judgement and order dated 24.01.2019 passed by the 09^th Additional Sessions Judge, Agra in Special S.T. No. 183 of 2017 arising out of Case Crime No. 446 of 2017 and Special S.T. No. 184 of 2017 arising out of Case Crime No. 447 of 2017 whereby both the appellants have been convicted under Section 8/21 N.D.P.S. Act with 12 years rigorous imprisonment and fine of Rs. 1,00,000/each and in default the appellants had to undergo one year extra imprisonment.

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The law was set into motion by filing the first information report as Case Crime Nos. 446 of 2017 and 447 of 2017 whereby S.H.O. G.R.P. Agra Cantt. Manikant Sharma submitted a seizure memo and seized articles along with above two accused persons in the police station concerned and alleged that on 30.09.2017 he along with S.I. Om Kumari, Constable Veer Singh, Constable Shakti Singh, Constable Vipin Kumar by report no. 32 at 16 hours

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proceeded for patrolling duty and checking the suspicious articles and persons. When they reached at platform no. 1 near escalator they met S.I. P.K.G.A. Naidu along with H.C. Sukhvir Singh, H.C. Dinesh Tyagi and Constable Navin Kumar of R.P.F. Delhi Police. When both the teams were moving towards platform no. 2/3 they got information through the informer that at the end of platform no. 2/3 near railway room a gang of thieves was sitting along with stolen articles. Believing on this information, he (S.O. Manikant) made search of himself and police team and after confirming that none of them was having any incriminatory article they reached at the spot and from the eastern side of the room they saw and heard a person speaking 'let us go in the train coming recently and commit theft in general compartment and whatever money or the article will be stolen that will be distributed amongst ourselves.' This conversation made them sure that it was a gang of thieves and the informer also went away pointed out at them. When raided, the accused persons started running but after 20-25 steps further from the railway room they were empowered and apprehended by the police party at 11.15 p.m. When asked the reasons of their running they disclosed that they were in possession of contraband alprazolam, restricted knife and theft articles like mobile phone, laptop etc. Then the Station Officer Manikant tried to contact C.O. G.R.P. Agra on his C.U.G. Phone but the C.O. was informed to be out of station so being no other way they apprised apprehended persons of their right that they can give their search before any gazetted officer or Magistrate. But they declined of their right and requested to be searched by the police party itself. After their consent following the provisions of Section 50 N.D.P.S. Act both the apprehended persons were searched and on interrogation one of them disclosed himself to be Sarfraj Alam and from the green black bag marked adidas, hanging on his shoulders white yellow powder wrapped in white coloured polythene was recovered. The apprehended person Sarfraj Alam disclosed this powder to be contraband alprazolam. From his bag one laptop and Rs. 400/- from right pocket of his trouser were also recovered. The other person disclosed his name to be Suresh Kumar. From the bag hanging on his shoulders one laptop, one mobile phone and in a white polythene white yellow powder

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were recovered. This white yellow powder was also disclosed to be contraband alprazolam.

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The third person was Kuldeep from his possession one restricted knife and five mobile phones were recovered.

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All the three accused persons acknowledged that they were habitual thieves and they used to steal the articles and money from the passengers. It was also revealed that they used to administer the contraband powder to the passengers and on their being unconscious they used to steal their articles. About one month and a week ago from Mangala Express they had stolen a lady's purse containing some documents, cash Rs. 1000/- and some jewellery. They sold the jewellery for Rs. 5000/- and distributed amongst themselves and Rs. 400/- recovered from them was the same money which they received in the said distribution. The rest money they had spent. They also acknowledged the recovered laptop and mobiles being theft property and disclosed that they were planning to sell these articles. On interrogation, they failed to produce any license of having contraband and papers of laptop and mobile. During this period Constable Vipin Kumar brought digital weighing machine. The contraband powder was weighed and found that the contraband recovered from Sarfraj Alam was 130 gm. and the contraband recovered from Suresh Kumar was 120 gm. Out of the recovered contraband 20-20 gm. each was taken as sample. The accused persons were made aware of their crime punishable under Sections 401, 414 of I.P.C. Sections 8/21 of N.D.P.S. Act and Sections 4/25 Arms Act and were taken into custody. The recovered material was sealed separately accused wise and was sealed by the specimen seal. During arrest the independent public witnesses were tried to be searched but no one consented to be the witness. During arrest the directions and orders of the Apex Court and Human Rights Commission were followed. The arrest memo and recovery memo were prepared on the dictation of S.O. Manikant Sharma by S.O. Om Kumari and the same were read over and explained to all the police personnel and the signatures of all were taken on the same. Copy of the memo was given separately to each of the accused persons. It was mentioned that the information of the arrest

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would be sent to the senior officers as per law. Thereafter by bringing the accused persons and the recovered contraband and other articles at the police station G.R.P. Case Crime No. 446 of 2017 under Section 8/21 N.D.P.S. Act was registered against Sarfaraj Alam and Case Crime No. 447 of 2017 under Section 8/21 N.D.P.S. Act was registered against Suresh Kumar along with other case crime numbers. Herein the matter under consideration is only the judgement dated 24.01.2019 of the lower court in Special S.T. No. 183 of 2017 arising out of Case Crime No. 446 of 2017 (State Vs. Sarfaraj Alam) and Special S.T. No. 184 of 2017 arising out of Case Crime No. 447 of 2017 (State Vs. Suresh Kumar) wherein both the accused persons are convicted under Section 8/21 N.D.P.S. Act and have been sentenced as above.

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After registration of the cases the investigation was conducted by S.I. Satya Vijay Singh and after his transfer the rest investigation was done by S.I. Peetam Singh. After due investigation charge sheet No. 323/2017 under Section 8/21 N.D.P.S. Act against the accused Sarfraj Alam and charge sheet No. 324/2017 under Section 8/21 N.D.P.S. Act against the accused Suresh Kumar were filed.

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After taking cognizance the lower court framed charges under Section 8/21 N.D.P.S. Act against Sarfaraj Alam and Suresh Kumar on 20.03.2018 separately.

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Both the Special Sessions Trials were tried together and the evidence was recorded in the file of S.T. No. 183 of 2017 (State Vs. Sarfaraj Alam).

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The prosecution produced as many an six witnesses in support of their allegations, P.W. 1 S.I. Manikant Sharma is the leader of raiding party, P.W. 2 Constable Veer Singh, P.W. 3 S.I. Om Kumari and P.W. 5 Constable Vipin Kumar are the members of the raiding party, P.W. 4 Constable Bhupendra Singh is the F.I.R. and G.D. writer, P.W. 6, S.I. Satya Vijay Singh and P.W. 7 S.I. Peetam Singh are the first and second Investigating Officers respectively.

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As documentary evidence, the prosecution proved in the lower court the seizure memo as Exhibit Ka-1, chik F.I.R. of Case Crime No. 446 of

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2017 (State Vs. Sarfaraj Alam) as Exhibit Ka-2, G.D. relating to the registration of the cases as Exhibit Ka-3, site plan as Exhibit Ka-4, FSL report regarding Case Crime No. 446 of 2017 (State Vs. Sarfraj Alam) as Exhibit Ka-5, charge sheet against Sarfaraj Alam as Exhibit Ka-6, FSL report regarding Case Crime No. 447 of 2017 (State Vs. Suresh Kumar) as Exhibit Ka-7, charge sheet against Suresh Kumar as Exhibit Ka-8.

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As material evidence the prosecution proved sealed cloth as material Exhibit-1, polythene in which the contraband recovered from Sarfraj Alam was wrapped as material Exhibit-2 and the recovered contraband as material Exhibit-3, sealed cloth of contraband recovered from Suresh Kumar as material Exhibit-4, white polythene in which the contraband was wrapped as material Exhibit-5 and the contraband recovered from the accused Suresh Kumar as material Exhibit-6.

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After the prosecution evidence the statements of both the accused persons were recorded under Section 313 Cr.P.C. wherein they denied the recovery and stated that on 26.09.2017 they were apprehended by the Delhi R.P.F. from Delhi Railway Station and were handed over by the Delhi R.P.F. to G.R.P Agra.

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The accused persons did not produce any evidence in their defence.

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The lower court after perusing the above evidence and hearing the arguments of rival parties found the prosecution evidence convincing and thereby convicted both the accused persons Sarfaraj Alam and Suresh Kumar under Section 8/21 N.D.P.S. Act as mentioned above.

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The present jail appeals have been filed separately by both the accused persons on the ground that the impugned judgement and order dated 24.01.2019 is against the facts of the case and the provisions of the law. The lower court has given undue weightage to the prosecution evidence and has illegally rejected the accused version. The sentence passed is excessive. No case is made out against them beyond reasonable doubt and the benefit of doubt has not been given to them. They are innocent as they have committed no offence. They have been falsely implicated. The prosecution has utterly failed to prove their case and the subordinate court has illegally convicted

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the appellants.

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Counter affidavit in case of Suresh Kumar has been filed by the State contending that the accused Suresh is a hardened criminal and has already been convicted in four criminal cases. From his possession 120 gm. Alprazolam powder has been recovered. The judgement dated 24.01.2019 has been passed after considering the evidence led by the parties. There is no illegality at all, hence the prayer for dismissal of appeal is made.

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I have heard the rival arguments of the parties, perused the record and reached at the following conclusion:-

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The charge on both the accused persons is that from their possession the contraband ' Charas ' of commercial quantity without license has been recovered. As per accused persons the recovery is false and they have been falsely implicated by lifting up from Delhi Railway Station by the R.P.F. Delhi.

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From the prosecution side four witnesses of recovery namely Manikant Sharma, Constable Veer Singh, S.I. Om Kumari and Constable Vipin Kumar have been produced and all of them have supported the prosecution case and proved the recovery.

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S.O. Manikant Sharma, P.W. 1 has reiterated the facts mentioned in the first information report and has disclosed that three persons were apprehended by the police at 11.15 p.m. on 30.09.2017 and on their disclosure of being in possession of the contraband the accused persons after apprising their rights of being searched before a gazetted officer or Magistrate consented themselves to be searched by the police party. From Sarfraj Alam 130 gm and from Suresh Kumar 120 gm. alprazolam powder was recovered from the bag hanging on their shoulder apart from other materials. This witness proved the recovered contraband in the court and stated that the memo of recovery was prepared as per procedure and the case was got registered at the police station concerned. The C.O. was tried to be contacted but he was reported to be out of station.

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P.W. 2 Constable Veer Singh has stated that on 30.09.2017 along with

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S.O. Mani Kant Sharma, S.I. Om Kumari, Shakti Singh and Vipul Kumar vide G.D. no. 32 at 16 hours they proceeded for patrolling duty and checking of suspected criminals and materials. On platform no. 1 near escalator they found S.I., Head Constable and Constable of Delhi R.P.F. along with them they were going towards platform nos. 2/3. They got information from the informer that at the end of platform no. 2/3 in the railway room a gang of thieves along with stolen goods is sitting. If proceeded hurriedly the gang could be apprehended. They reached at the pointed spot. From the side of room (Kothari) they saw and heard their conversation that train is about to come, let us go in the general bogi there we will get handsome amount/articles. The police party proceeded and 2025 steps away from the room they apprehended all the three persons. On interrogation they disclosed that they were in possession of contraband substance, restricted knife and stolen mobile and laptop. S.O. Manikant Sharma by his CUG phone tried to contact the C.O. but he was reported to be out of station. The accused persons were apprised of their right of being searched before any gazetted officer/Magistrate but they declined of their right and consented to be searched by the police party itself. Then S.O. got the consent leter from all the three accused persons. On interrogation one accused disclosed his name to be Sarfraj Alam. From the bag on his shoulder in white polythene white yellow powder was recovered, which he disclosed to be alprazolam powder. One laptop (soni) from his bag and Rs. 400/- from his pant were also recovered.

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The second person apprehended disclosed himself as Suresh Kumar. From his bag one laptop, one mobile and white yellow powder in white polythene were recovered. This powder was also disclosed by the accused Suresh Kumar to be contraband alprazolam. The police party also saw and recognised the powders as alprazolam. Both the accused persons disclosed that they used to administer this powder to the passengers by mixing in the edibles and later on used to steal their goods. One month back, from the sleeper coath of Mangala Express they had stolen a lady's purse. Today they had come to sell the stolen goods and were apprehended by the police party. On the direction of S.O. Manikant Sharma, Constable Vipin Kumar brought

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a digital weighing machine and when recovered contraband specimen was weighed separately the contraband recovered from Sarfraj Alam was found to be 130 gm. and the powder recovered from Suresh Kumar was found to be 120 gm. From both the recovered contraband separate samples of 20-20 gm. were taken. Specimen seal was prepared. The raiding party asked the passengers present there to be the witnesses but being passengers they refused to become the witnesses. Seizure memo was prepared on the spot, he put his signatures on the same. The accused persons and recovered material were taken to the police station and S.O. Manikant Sharma got the cases registered against the accused persons.

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P.W. 3 S.I. Om Kumari and P.W. 5 Constable Vipin Kumar also repeated the same facts. S.I. Om Kumari revealed that she escribed the fard on the dictation of S.O. Manikant Sharma. All the witnesses verified their signatures on memo of recovery. P.W. 4 proved the chick F.I.R. and G.D.

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P.W. 6 and 7 the Investigating Officer nos. 1 and 2 respectively proved the process of investigation and the charge sheets filed by them. FSL reports have also been proved by the Investigating Officer P.W. 7.

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It is argued on the part of the accused counsel that no independent witness of the incident has been produced. All the witnesses produced are the police personnel, and their evidence cannot be relied upon.

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It is true that no independent witness has been produced by the prosecution and all the witnesses produced are the police witnesses.

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In this regard, learned A.G.A. has placed reliance on the decision of the Apex Court in the case of M. Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence 2003 ( 8) SCC 449 and has argued that by non production of independent witness in seizing under NDPS Act, the prosecution fact shall not be vitiated.

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The Apex Court in Ajmer Singh Vs. State of Haryana Appeal No. 436 of 2009 decided on 15.2.2010 has opined that if at the time of recovery of contraband no independent witness is present such absence is only an irregularity and it does not vitiate the prosecution itself. It was found by the

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Apex Court that since the prosecution had established in the circumstance of the case no such witness could be procured inspite 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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The Apex Court in Kashmiri Lal Vs. State of Haryana in Cr. Appeal No. 1576 of 2009 decided on 15.5.2013 held that ordinary 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 witness and their testimony should 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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The Apex Court in Full Bench judgement in case of Mukesh Singh Vs. State (Narcotics Branch of Delhi) decided on 31.8.2020 reported in Supreme (SC) 528 has opined that testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by the independent witness his testimony cannot be relied upon. The 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 ground therefor. The question of prejudice or bias has to be established and not inferred. The question of bias will have to be decided on the basis of the 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 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 only if their evidence is found to be trustworthy then only on the ground that no independent witness has been produced the accused person cannot claim his acquittal.

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Thus, now it is to be looked into whether the prosecution has been able to establish that no such witness could be procured in spite of serious

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attempts made by the prosecution and if it is so whether the evidence of police personnel is found to be so trustworthy that the accused on the basis of evidence of police personnel only can be convicted. If we go through the memo of recovery, it is evident that the arrest was sudden. It was not preplanned one. As per seizure memo during the preparation of memo the attempt was made to find out the witnesses from among the persons passing thereby and none of them consented to become witness.

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In the recovery memo itself it is mentioned that during arrest of the accused persons also the public witnesses were tried to be taken but no one consented to become the witness. P.W. 1 has also stated in the examinationin-chief at page-'3' that they asked the passengers standing nearby to become the witness but being the passenger they did not consented to become a witness. P.W. 2 the leader of seizure party at page-'4' in the examination-inchief has stated that during arrest they tried to collect public witness but being passenger no one consented for the same. P.W. 3 in the examinationin-chief at page-'3' and P.W. 5 in the examination-in-chief at page-'2' have stated the same facts that they tried to search public witnesses but no one consented to become witness. Hence, it is clear that the police party tried to procure the witnesses but no one consented for the same. Moreover, it was the odd time of about 11 O'clock in the night so no one consented to become a witness. Hence it is clear that the raiding party attempted to procure independent witnesses but no one consented for the same.

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Now it is to be seen whether the statements of police personnel are so trustworthy that the guilt of the accused can rest upon the same. The leader of the raiding team and three members of the same have adduced the evidence in this regard and proved the documents prepared as noted above and thus have proved the recovery made by them. Nothing incriminatory has come in their cross examination.

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It is argued by the learned counsel for the appellant that Section 42 of the N.D.P.S. Act has not been complied with. Section 42 of the N.D.P.S. Act, 1985 is reproduced as under:-

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42. Power of entry, search, seizure and arrest without warrant or

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authorization.

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(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-

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Thus, it is clear from the above provision that this section will apply only in the case when the recovery/ seizure is made from any building conveyance or enclosed place. In the judgment of Ram Kumar Vs. Central Bureau of Narcotics, (2008) 5 SCC 385 , it is held by the Apex Court that in case of chance recovery restrictions on search and seizure under section 42 of NDPS Act are not applicable and in this case also the recovery is a chance recovery. It was not a pre-planned recovery. In the judgment of Ravindran alias John Vs. Superintendent of Customs, (2007) 6 SCC 410 , Hon'ble Apex Court held that arrest and seizure made at bus stand and not in any building, conveyance or enclosed place Section 42 was not attracted in such a case.

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It is also argued by the learned counsel for the appellant that in compliance of section 42 (2) of the NDPS Act the information in writing under section 1 of Section 42 has not been sent to the immediate superior officer within 72 hours of the incident. In my opinion, this section applies only when the seizure and recovery is made from a building conveyance or enclosed place but in the case in hand the recovery has been made from an open place so this section is not applicable to the present case and the argument made by the learned counsel for the appellant regarding non

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compliance of Section 42 or 42 (2) of N.D.P.S. Act, 1985 has no force.

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With regard to the argument of learned counsel for the appellant that compliance of Section 50 of the N.D.P.S. Act has not been done and the accused persons have not been apprised of their right of being searched before a Magistrate / Gazetted Officer. section 50 of the N.D.P.S. Act can be reproduced as under:-

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50. Conditions under which search of persons shall be conducted.

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(1) When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

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(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection(1).

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Thus it is clear that when a person is searched he shall if so required be taken without unnecessary delay to the nearest Magistrate or the Gazetted Officer. The Apex Court in judgment of Jarnail Singh Vs. State of Punjab, AIR 2011 SC 964 held that the compliance of section 50 of NDPS Act can be invoked only in cases where drug narcotic/ NDPS substance is recovered as a consequence of body search of accused. In that case where the recovery of narcotics was made from the container being carried by individual, provisions of section 50 were not found to be attracted. In the judgment of State of Himachal Pradesh Vs. Pawan Kumar, 2005(3) Supreme 321 , the Apex Court held that search mentioned in Section 50 of N.D.P.S. Act would not apply to any bag, brief-case or any other article or container being carried by the accused. The word ''person' would mean a human being with appropriate coverings and clothings and also footwear. In the judgment of Kashmiri Lal Vs. State of Haryana, 2013 0 Supreme (SC) 493 , the Apex Court held that when a vehicle is searched and not the person of the accused, section 50 is not attracted. In the judgment of State of Haryana Vs. Jarnail Singh and others, AIR 2004 Supreme Court 2491, the Apex Court held when there was no prior information regarding contraband being carried in vehicle and recovery was result of checking vehicle in normal course, no

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personal search was involved, the provision of Section 50 would not apply. The five judges bench of Apex Court in the judgment of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, 2011 (1) JIC 624 (SC) has held that failure to comply with the provisions of Section 50 of NDPS Act would render the recovery of illicit article suspect and vitiate the conviction if the same is recorded only on the basis of recovery of illicit article from the person of the accused during the search.

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In the case in hand, the recovery is made from the bag and not from the person of accused, so Section 50 of NDPS Act would not apply. Thus, the argument advanced by the learned counsel for the appellant regarding non -compliance of Section 50 of NDPS Act has no force.

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It is argued by the learned counsel for the appellant that the compliance of Section 57 of the NDPS Act has not been done. Section 57 of the NDPS 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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This section provides that after arrest of the accused within 48 hours, the report of this arrest or seizure is to be made to the immediate superior officer.

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If we go through the seizure memo exhibit k-2, it is not mentioned therein that within 48 hours particulars of the arrest and seizure were reported to the immediate superior officer.

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In the seizure memo Exhibit Ka-1 itself and in the statement of S.O. P.W. 1 and other witnesses of recovery it has come that S.O. Manikant Sharm tried to contact the C.O. on mobile from the spot itself but he could not be contacted as he was reported to be out of station. There is nothing on record to show that the compliance of this provision was done.

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Thus, on the basis of evidence produced it is not proved that any such report was prepared by the arresting party. In judgment of Gurbax Singh Vs. State of Haryana, 2001 (1) JIC 923 (SC) , the Apex Court held that the provision of Section 52 and 57 are directory. The violation of these

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provisions would not ifso-facto violate the trial or conviction, though non compliance of the section 57 of NDPS Act only would not vitiate the conviction but along with non compliance of section 57 of NDPS Act if other important infirmities are also found the cumulative effect of such factors would have detrimental effect on the prosecution case.

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It is also pointed out by the accused counsel that as per recovery memo consent letter of the accused persons were prepared and it has come in the statement of the witnesses also that the appellants accused persons consented to be searched by the police party so the consent letters were prepared but such consent letters have not been produced in the Court. As it has been decided above that Section 50 of N.D.P.S. Act does not apply to the present case. When there was no obligation on the part of police party to apprise the accused persons of their right of being searched before Magistrate/Gazetted officer so relinquishment of right of being searched before Magistrate/Gazetted officer and to give consent to be searched before the raiding party itself and thereby preparing the consent letters looses its importance. Thus, this argument of learned counsel for the appellants also has no force.

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It is also argued by the learned counsel for the appellant that as per Sections 25 and 26 of the Evidence Act, confession made before a police officer cannot be proved against the accused of any offence unless it is made in the immediate presence of the Magistrate. In my opinion as the consent letters of the appellants accused persons are said to be their confession before the police party on the basis of the above discussion it has been proved that as Section 50 of N.D.P.S. Act does not apply to the present case so the consent letters loose their importance. This argument of learned counsel for the appellants also has no force.

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It is argued by the learned counsel for the appellants that in compliance of Standing Order No. 1 of 1989 dated 13.06.1989 of Narcotics Control Bureau, the samples were neither taken in duplicate and nor the quantity of the contraband mentioned in this standing order has been taken as sample in the case in hand.

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The relevant portion of the standing order no. 1 of 1988 dated 13.06.1989 is reproduced as under:-

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“Quantity to be drawn for the sampling.

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2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantity shall be taken for the duplicate sample also. The seZed drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.

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Method of drawl

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(a) Single container/package.

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2.4 In the case of seZure of a single packet/container, one sample (in duplicate) shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seZure of more than one package/container.”

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According to this standing order the sample is to be taken in duplicate and the quantity of each sample should be 24 gm. while in the case in hand the samples have been taken as single sample of 20 gm. each. In my opinion the standing order being just a guideline issued by the Narcotics Control Bureau mere violation of the same cannot vitiate the prosecution.

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It is also argued that as per memo of recovery 20 gm. each of contraband powder was taken as sample from the recovered contraband but when the same is received in the Forensic Science Laboratory the contraband sample taken from the accused Sarfraz Alam is found to be 20.2 gm. and the sample take from the accused Suresh Kumar is found to be 25.2 gm. which makes the recovery suspicious. If the contraband was weighed by the police on the digital scale then how this discrepancy occurred.

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In my opinion the difference is of only 5 gm. that too in the sample taken from accused – Suresh Kumar this discrepancy could be due to weighing the contraband along with polythene or without polythene. Moreover, the discrepancy in the quantity of contraband is not of such nature that can vitiate the prosecution.

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It is also argued on behalf of the appellants that the specimen seal has not been produced in the court which makes the procedure of sealing the

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contraband suspicious. It is true that as per recovery memo seal was prepared but the same has not been produced in the court and the reason of the same has also not been disclosed. If we go through the report of Forensic Science Laboratory regarding contraband recovered from both the accused persons, in both of the reports the words used are “monogram S.I. UPP मुद्रा नमूनानुसार”, which makes it clear that the seal was prepared on the spot and the same was sent to the Forensic Science Laboratory and the sample of the contraband was found intact as per seal. So failing to produce the seal in the court only would not vitiate the conviction. Regarding this argument, learned counsel for the appellants has placed reliance on the judgement Chinku Gupta Vs. State of U.P., 2018 0 Supreme (All.) 1365 of the coordinate bench of this Court. It is true that in that case the appeal culminated into acquittal but as per the facts of this judgement also the prosecution did not fail only on the simple ground of non production of seal in the court rather the prosecution had failed therein to establish the recovery of 2 kg. 'Charas' from the accused beyond reasonable doubt. As per judgement, there were various other infirmities also and the cumulative effect of all those infirmities made a detrimental effect on the prosecution case.

¶102

In the present case, the prosecution has fully supported the recovery of contraband from the accused persons by producing four witnesses of the recovery including the team leader, P.W. 1 and nothing incriminatory or material contradiction has come in the evidence of the witnesses. No mandatory provision has been violated by the raiding party. The non production of the seal or the contradiction in the statement of witnesses regarding the time taken in preparation of the memo and reaching at the police station are the infirmities that do not go to the root of the case. The recovery has been proved by the witnesses beyond reasonable doubt so in my opinion the insignificant contradiction in the statement of the witnesses and non compliance of the directory guidelines of Narcotics Control Bureau cannot vitiate the conviction. In my opinion, the prosecution has succeeded in proving its case beyond reasonable doubt.

¶103

¶104

The appellants have failed to prove their innocence and nothing incriminatory has been put before the Court that the evidence produced or proceeding followed by the prosecution are contradictory and not in compliance of the provisions of law.

¶105

In view of above discussion, I find 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 persons. They have been rightly found guilty of the offence punishable under Section 8/21 N.D.P.S. Act. The sentence awarded is also adequate.

¶106

The present jail appeals lack merit and are accordingly dismissed . The conviction and sentence recorded by the IX Additional Sessions Judge, Agra against the appellants is hereby confirmed. Order Date :- 7^th January, 2022 gp

Sarfraz v. State of U.P.

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Sarfraz v. State of U.P.

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