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TMI Blog2018 (1) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... table Babu Ram, Constable Dharmendra Nayak and Constable Ajai Kumar (SOG) GRP, Gorakhpur also reached there and were discussing regarding criminals. All of them together were proceeding towards western direction. On the way, an informer told them that two persons were sitting on Railway Platform No. 1 at the western end, who possessed Narcotic powder and could give effect to some offense of administering such drugs/substance to public. Believing this information, the police party departed towards western end of the Platform No. 1 and just before 20 metres from the western end of the platform, the informant indicated them where these two persons were sitting and left the spot. The police party surrounded both these persons and apprehended them at about 8.20 pm. They disclosed their names to be Shamshuddin and Baijil Seliven and further apprised that they had alprazolam Powder which they used to administer to the travelers of train and upon their turning unconscious, they used to take away their belongings. Both the persons were apprised of their right that they could opt to be searched in presence of a Magistrate or a Gazetted Officer. In response, they stated that they have already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 6.12.2013 under Sections 8/22 of NDPS Act, to which he pleaded not guilty and claimed to be tried. 5. The statement of accused appellant were recorded under Section 313 Cr.P.C., in which he denied entire evidence produced regarding recovery of 120 grams Alprazolam powder from him; the report of FSL was stated by him to be erroneous; he stated that he was falsely implicated; Gorakhpur police had arrested him and he was falsely challaned in the present case. He had gone to Gorakhpur Railway Station to drop his brother. He did not have ticket. The G.R.P. Police was demanding bribe of Rs. 1,000/- which he could not provide and consequently he was falsely implicated in this case. 6. The perusal of the impugned judgment would indicate that before learned court below, from the side of the accused appellant the grounds were taken that the prosecution did not make compliance of Section 42 and Section 50 of NDPS Act. But the learned court found adequate compliance of these Sections to have been made. Prior to the search of accused, he was apprised of his right to be searched before a Magistrate or a Gazetted Officer and upon his giving consent that he was ready to be searched by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness of this recovery subsequently. (g) PW-4 Arvind Kumar (I.O.) has admitted that he made entry in case diary about FSL's report on 2.8.2013 after the same having been received. The said report is dated 13.9.2013 which was signed on 22.8.2013. The contraband substance was sent to FSL on 27.7.2013 which was received there on 29.7.2013. Reminder was sent by SSP, Railway Balia on 12.9.2013 that report was not received till then and because of that delay was occurring in the investigation. In such situation, how was it possible for the PW-4 -Arvind Kumar (I.O.) to make entry of receipt of FSL's report in case diary on 2.8.2013. PW-4 has stated that on 12.9.2013, he copied the FSL's report, in which Alprazolam powder was found. It leads to suspicion and its benefit must go to the accused. (h) In fact accused was arrested in Gorakhpur and was brought to Bhatni where he was falsely implicated in the present case because of this, the above said contradictions have come in prosecution's evidence. (I) Shri Rakesh Kumar Singh, learned amicus curiae has relied upon the judgment delivered by Hon'ble Supreme Court in Criminal Appeal No. 896 of 1997 (Ouseph Vs. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd, reversal thereof by High Court was not justified". In view of discussions made above, I have come to the conclusion that the learned A.G.A. has failed to show that the learned trial court has not considered any evidence on record or has misread any evidence on record or to show any legal infirmity, incorrectness or perversity in the finding given in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the acquittal order and substituting it with conviction order. The application u/s 378 (3) Cr.P.C. has no force and is liable to be dismissed." 8. Citing above case law, it was argued that due to there being found big difference in the quantity of sample of contraband substance allegedly sent to FSL and the quantity which was found received in FSL, it was considered to be a big lacunae/big discrepancy in the prosecution's case. Hence, the court had found that there was no infirmity in the judgment passed by the lower court acquitting the accused. 9. First of all, point no. 1 is being taken up whereby Shri Rakesh Kumar Singh, learned amicus curiae has raised doubt about the original recovery memo not being produced befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the accused that he would not like to be searched in presence of a Magistrate or a Gazetted Officer rather he was ready to be searched by the police party itself, was not signed by Sahdeo Dubey (PW-2) although he has stated to have prepared the same. Sahdeo Dubey (PW-2) has stated that the S.O. Sahab had dictated the memo of consent, memo of arrest, the information sent to the officers and the recovery memo regarding recovery of 260 grams Alprazolam powder, which were prepared by him in his hand writing and were exhibit Ka-1, Ka-2, Ka-3 and Ka-4 respectively. In cross-examination, this witness has stated that he had not signed on recovery memo nor had he signed any other document. After preparing the recovery memo he obtained signature of the accused thereon. Upon perusal of the said consent memo, it is found that it has been signed by some officer on 18.7.2013, and has also been signed by the accused-appellant and it is recorded in this memo that accused was arrested on 18.7.2013 by police party with Aprazolam powder and was apprised about his legal right that he could give his search in presence of a Gazetted Officer or a Magistrate but he had told them that they could take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a Gazetted Officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with requirements provided in Section 50. No presumption under Section 54 of NDPS Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with." 14. Hence, there is no doubt that there was sufficient compliance made of Section 50 of NDPS Act by apprising the accused of his above right. 15. The next point raised by learned Amicus Curiae is that according to prosecution version no beating was made of the accused-appellant while an injury of hard object has been found on his buttock which suggests that he was beaten by police party. The medical report of the P.S., GRP, Bhatni, District Deoria dated 18.2.2013 contains the fact that accused was medically examined on 18.2.2013 at 1:45 pm and a wound was present on left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused. Such is not the case here. Hence, no benefit could be given to the accused in the present case of the aforesaid ruling. 17. Next point raised by the learned Amicus Curiae relates to the police party not making it clear as to weights of which particular units were used in weighing contraband substance recovered from the accused and from where they were taken for this purpose. Also discrepancy with regard to bringing the weighing machine has also been pointed out in the statement of witnesses of fact. Hence, it would be pertinent to refer to those discrepancies and to analyse whether they were serious enough to dent the case of prosecution. 18. In recovery memo it is recorded that the recovered contraband was weighed separately by weighing machine and weighing units (Taraju Bant). It is not recorded as to from where these items were procured for weighing the contraband substance. PW-1 in this regard has stated in examination-in-chief that constable Chandrika Prasad was sent for bringing weighing machine and weighing units from nearby Kasba, Bhatni. In cross-examination, this witness has stated that for weighing the recovered contraband substance, a weighing machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancy to the accused. 20. The next point raised by Shri Rakesh Kumar Singh, learned Amicus Curiae is that PW-4 (I.O.) has stated that he recorded in case diary about the FSL's report received on 2.8.2013 which was not possible because report is of 13.9.2013 signed by Officer of FSL on 22.8.2013. The sample was sent on 27.7.2013 and the same was received in FSL on 29.7.2013. The S.S.P., Balia had sent a letter on 12.9.2013 saying therein that the FSL's report was not received which was delaying the investigation. In this background it was argued that how PW-4 made a mention in case diary that he copied the FSL's report on 2.8.2013. P.W-4 (I.O.) has stated that on 12.9.2013 he made copy of FSL's report in case diary which is also incongruous as till then how could he has received the report when it was sent on 13.9.2013 which is a date mentioned in the FSL's report (Exhibit Ka-9). In this regard, the relevant portion of the statement of PW-4 requires to be reproduced. On 2.8.2013, he had made entry in case diary regarding depositing report of recovered contraband substance in FSL and on 3.8.2013 after receiving the memo and report, he verified that it bore correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the other seal was that of FSL. He had sent the entire recovered material and not its sample. The Investigating Officer had sent docket of the material to be tested. Before being sent to the FSL this recovered material remained in Malkhana. PW-1 has stated that after sealing the contraband recovered from the accused, the same was sealed on the spot and its sample was prepared. Although, the said sample was not on file. The contraband substance sealed was also signed by the accused which is present in court and which has signatures on it of the accused. The said contraband substance has also his signatures on it. The said contraband substance was kept in Malkhana. He did not have the seal of the police station, the said material was presented before court at the time of remand. 22. PW-2 has stated that 120 grams Alprazolam was recovered from the accused, which was brought to the police station along with accused. After the said material was brought to the police station, the same was handed over to the Head Moharrir. PW-4 (Investigating Officer) has stated in examination-in-chief that on 2/8/2013, he had received a report regarding depositing of the recovered material. On 3/8/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, it is held that the Court below rightly held that the said contraband was recovered from the accused, for possessing of which he did not have licence. Regarding the point that he had not signed on the recovery memo nor had he signed on any other document prepared on the spot it may be mentioned that he (PW 1) stated that after preparation of recovery memo and writing the memo he along with others as well as accused persons had put their signatures thereon. A copy of the recovery memo was provided to the accused, it was also endorsed that no public witness was ready to be a witness of recovery in this case. Two bundles were prepared of recovery memo, he does not recollect whether any quantity was taken out from the recovered substance for sample. The recovered material was given to head Mohrrir in two bundles. It was wrong to say that accused Baijil Saliben was arrested in Gorakhpur and was brought to Bhatni and was falsely challaned and no contraband substance was recovered from him. 23. No detailed cross-examination has been made by the defense as regards there being any tampering in the seal by which the recovered material was sealed on the spot, which was presented before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court has rightly rejected the plea that departmental witness should always be seen with an eye of suspicion. Rather the law is that their evidence should be seen with a caution and the evidence should be analysed and examined very thoroughly. But once it is found that the presence of such departmental witnesses is established and they are telling the truth, that shall be utilised as a valuable piece of evidence and conviction can be based upon that." 25. In view of above position of law, the police witnesses are not shown to have any anterior enmity with the accused because of which it would be difficult to believe that these witnesses would be deposing against the accused with ulterior motive. No suggestion is given of any kind of enmity even. Hence their statements when meticulously analyzed, prove the fact that accused was found in illegal possession of 120 grams of Alprazolam, for which he had no license. It can also be mentioned here that the quantity recovered from the accused is much higher than the quantity described as commercial, which would be difficult to be planted by police keeping in view the price that it would entail. In statement under section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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