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TMI Blog2015 (1) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and have been falsely implicated. Neither accused-appellants have stated in their statement under Section 313 Cr.P.C. nor their witness D.W. 1 Ram Chandra Yadav has stated that no narcotic drug was recovered from the car standing on the spot. Accused-appellants have not stated in their statements under Section 313 Cr.P.C. that false recovery of Charas and Ganja have been planted by officers of Customs and Excise Department. No suggestion has been given to prosecution witnesses on behalf of defence that the recovery of Charas and Ganja has been planted by the departmental officer. - prosecution has fully proved the arrest of accused-appellants on spot along with Ambassdor car having Charas and Ganja in it. Therefore, in view of above pronouncement of Hon'ble Apex Court rendered in the case of Khet Singh Vs. Union of India (supra), the preparation of recovery memo in the office of department is not fatal for prosecution case. In this context, it is relevant to mention that after recovery of narcotics drugs in such a huge quantity, the preparation of recovery memo on road appears quite inconvenient. Recovery of Charas and Ganja is alleged to have been made on 25.8.1988. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r authority alleging that accused have been forced to give false statements Considering whole facts and circumstances of the case as well as evidence on record, I am of the view that the conviction recorded by trial court against accused-appellants is in accordance with law and evidence. The trial court has considered whole evidence and all points relevant for determination of the case. The conclusion drawn by trial court is based on judicious analysis of evidence and is accordance with law. - Considering quantity of Charas and Ganja alleged to have been recovered from the possession of accused-appellants as well as facts and circumstances of the case, I am of the view that sentence awarded by trial court to accused-appellants is not excesive. - there is no sufficient ground for interference in the impugned judgement and order passed by trial court. - Decided against appellants. - CRIMINAL APPEAL No. - 4531 of 2003 - - - Dated:- 9-1-2015 - Akhtar Husain Khan, J. For The Appellant :- Arun Kumar Tewari, A.K. Tewari, Amit Misra, Amit Sinha, Arun Kumar Mishra, Aseem Kumar Rai, Dilip Kumar, Mridul Tripathi, P.C.Shukla Amicus Curie, R.S. Shukla, Santosh Kumar Singh, Sarvesh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in complaint took position in Mohalla R.S.Puram behind Rawatpur Station on 25.8.1988 at 1.30 p.m. At about 2.00 p.m. an Ambassador car bearing registration no. U.P. G 3627 was detected proceeding from the side of Mohalla R.S. Puram. Said car was asked to stop near Kaka deo. But driver of car instead of stoping car tried to speed up car. Inspector J.S. Saxena and his team chased the said car and got it stopped whereupon all the three persons including driver sitting in the car tried to ran away after having stopped car at R.S. Puram Tiraha but all of them were apprehended by the team. Thereafter, they disclosed their names as Anil Kumar Jaiswal, Ram Chandra Yadav and Jagram with their addresses mentioned in recovery memo as well as in complaint. Thereafter, team made search of car whereupon two bags of rexine containing Charas were recovered from the back seat of car while Ganja kept in packets as well as in one small bag was recovered from dicky of car. Thereafter, recovered Charas and Ganja were weighted after having brought to the office of department. Weight of Charas was 8.800 Kgs and weight of Ganja was 115.750 Kgs. The recovered Charas and Ganja were duly seized by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Chandra Shukla, Superintendent Central Excise Division-I, Kanpur Nagar and P.W. 4, Umesh Chandra Shukla, Superintendent Central Excise, Moradabad. After prosecution evidence statements of accused-appellants Anil Kumar Jaiswal and Jagram were recorded under Section 313 Cr.P.C. Accused Ram Chandra Yadav died during trial. The case abated against him. Accused-appellants Anil Kumar Jaiswal and Jagram stated in their statements under Section 313 Cr.P.C. that they have been falsely implicated. D.W. 1 Ram Chandra Yadav was examined on behalf of accused-appellants in defence. Learned Special Judge (N.D.P.S. Act) heard arguments of the parties and passed impugned judgement and order dated 16.9.2003 whereby he has convicted and sentenced accusedappellants as mentioned above. Learned counsel for the accused-appellants contended that accused-appellants are innocent and have been falsely implicated. Learned counsel for the accused-appellants contended that mandatory provisions of Sections 42 and 50 of N.D.P.S. Act have not been complied with, therefore, recovery alleged by prosecution is vitiated and cannot be relied. Learned counsel for the accused-appellants contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Chandra Yadav. P.W. 1, Moris William Henari, Superintendent Central Excise, Kanpur Nagar has stated in his statement on oath that on 25.8.1988, he was posted as Inspector in Central Excise Collectrate Narcotics Branch. He has further stated that on 25.8.1988 at about 1.30 p.m., he took position on the direction of superior officer behind Rawatpur station in Mohalla R.S. Puram. After sometime a dark brown Ambassador car bearing no. U.P. G- 3627 was seen coming from the side of Mohalla R.S.Puram. Thereafter, said car was chased and got stopped whereupon three persons including driver sitting in the car tried to ran away after having stopped car but all of them were apprehended. They disclosed their names Anil Kumar Jaiswal Jaiswal, Ram Chandra Yadav and Jagram. Thereafter, in their presence search of car was made whereupon two bags of rexine containing Charas were recovered from the back seat of car, while Ganja kept in packets as well as in one small bag was recovered from dicky of car. Thereafter, said three persons were brought to office Sarvodaya Nagar along with articles recovered from their possession, where recovered Charas and Ganja were weighted. Weight of Charas was 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n oath P.W. 4 Umesh Chandra Shukla has proved chemical report of samples of Charas and Ganja recovered as well as receipt of godown on which Ex. Ka-15, 16 and 17 have been marked by trial court. Accused-appellant Anil Kumar Jaiswal has stated in his statement under Section 313 Cr.P.C. that he was going to his shop of Dalmoth (Namkeen) situated near Rawatpur station on G.T. Road. Accused-appellant Jagram was also with him. At that time near Kakadev crossing, non uniformed persons had detained a car. Accused-appellant Anil Kumar Jaiswal has further stated in his statement under Section 313 Cr.P.C. that he and accusedappellant Jagram began to see the car detained by non uniformed persons whereupon said non uniformed persons took them to their office and asked them to become witnesses but they declined to become witnesses whereupon they were beaten and were forced to sign wrong statements. Accused-appellant Anil Kumar Jaiswal has stated in his statement under Section 313 Cr.P.C. that neither any recovery has been made from his possession nor he has any concen with articles alleged to have been recovered. Similar statement has been given by accused-appellant Jagram in his st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to section 42 of the N.D.P.S. Act for searching the vehicle between sunset and the sunrise . In the case of G. Srinivas Goud Vs. State of A.P. 2005 SCC (Crl.) 1999 relied upon by Special Counsel for Union of India. Hon'ble Apex Court has held as follows :- The function of arrest, search and seizure carried out under Section 42(1) is by officers who do not have warrants or authorization in their hands before proceeding to take action. This is as per the heading of the Section which reads: Power of entry, search, seizure and arrest without warrant or authorization . Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered. In cross-examination, P.W. 2, J.S. Saxena has stated that His Officer, Sri R.P. Tamta had given him information regarding carrying of Narcotic drugs by Ambassdor car in office at 1.00 p.m. Thus, it is apparent that search has been conducted in compliance of direction given by superior officer and it is apparent from recovery memo (Ex. Ka-1) as well as statements of P.W. 1, Moris William Henari, P.W. 2, J.S. Saxena and P.W. 3, Ramesh Chandra Shukla that Charas and Ganja have been recovered in public place from Ambassdor car in possession of accused-appellants. After having goune through whole facts and evidence in view of principle laid down by Hon'ble Apex Court in the case of State of Haryana Vs. Jarnail Singh and others (supra) as well as in the case of G. Srinivas Goud Vs. State of A.P. (supra), the conclusion drawn by learned trial court regarding non-applicability of Section 42 of N.D.P.S. Act cannot be said to be erroneous and against law. It is apparent from perusal of recovery memo (Ex. Ka-1) as well as statements of P.W. 1, Moris William Henari, P.W. 2, J.S. Saxena and P.W. 3, Ramesh Chandra Shukla that recovery memo has not been prepared on the place wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms and Excise Department. No suggestion has been given to prosecution witnesses on behalf of defence that the recovery of Charas and Ganja has been planted by the departmental officer. It is relevant to mention at this juncture that accused-appellants had not made any complaint against officers of Customs and Excise Department for false implication. They have not made any complaint even before Magistrate before whom they were produced for first remand. The evidence on record shows that there is no ground for false implication of accused-appellants by authorities of Customs and Excise Department. Considering whole facts and circumstances of the case as well as evidence on record, I am of the view that prosecution has fully proved the arrest of accused-appellants on spot along with Ambassdor car having Charas and Ganja in it. Therefore, in view of above pronouncement of Hon'ble Apex Court rendered in the case of Khet Singh Vs. Union of India (supra), the preparation of recovery memo in the office of department is not fatal for prosecution case. In this context, it is relevant to mention that after recovery of narcotics drugs in such a huge quantity, the preparation of rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndra Shukla has not been given any suggestion on behalf of defence to the effect that the case property produced before trial court is not the case property related to this case. It is also relevant to mention that the accusedappellants have stated that they have been falsely implicated but they have not denied recovery of Charas and Ganja from car as alleged by prosecution. Therefore, considering all facts and circumstances of the case as well as evidence on record, I am of the view that the prosecution case may not be disbelieved merely on the ground that the case property brought before trial court was not in a good condition. In the case of Heeramani Sahu Vs. State of Chhattisgarh, LAWS (CHH)-2013-5-7, Hon'ble High Court Chhattisgarh has relied upon judgement of Hon'ble Apex Court rendered in the case of State of Rajasthan Vs. Bher Singh, (2009) 16 SCC 293, wherein Hon'ble Apex Court has held that : the prosecution has failed to prove that the seal of the seized samples had remained intact till its examination in FSL, this being a mandatory requirement to establish the fact that seized goods was in fact a prohibited drug under the NDPS Act. Perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution, it is apparent that there is no material contradiction in their statements and there is no sufficient ground to disbelieve their testimonies. In view of discussion made and conclusion drawn above, I am of the view that witnesses examined by prosecution are trustworthy witnesses and there is no reasonable ground to disbelieve them. In the case of Ajmer Singh Vs. State of Haryana, 2010 CrLJ 1899 SC, Hon'ble Apex Court has held that it cannot be said that the evidence of official witness cannot be relied upon as their testimony has not been corroborated by any independent witness. In view of this pronouncement of Hon'ble Apex Court, the prosecution story may not be discarded merely for want of public witness. In this context, it is relevant to mention that no one shall take risk of enmity against Mafia by appearing as a witness against him. In the case of Ram Singh Vs. Central Bureau of Narcotics, (2011) 3 Supreme Court Cases (Cri.) 181. Hon'ble Apex Court has placed reliance on its previous judgements rendered in the case of M. Prabhulal v. Directorate of Revenue Intelligence, (2003) 8 SCC 449 as well as in the case of Kanhaiyalal v. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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