Ashok Kumar Gupta vs State of U.P.

Ajai Kumar Singh, J.—The present appeal has been preferred by accused, Ashok Kumar Gupta against the judgment and order dated 7.2.1995 passed by Sri Vichitra Kumar, Vth Additional Sessions Judge in Criminal Case No. 960 of 1992, State of U.P. v. Ashok Kumar, u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as N.D.P.S. Act), Police Station, Sigra, district Varanasi convicting him u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to undergo rigorous imprisonment for 10 years and a fine of Rs. 1,00,000 (One lac) and in default to undergo rigorous imprisonment for a further period of 3 years.

Briefly stated that the prosecution case is that on 7.8.1992 when the complainant, S.I. Sri Dhananjay Mishra was on patrol duty alongwith constable Sri Om Prakash Yadav and reached near Sajan Tiraha, he met with S.I. Sri Triloki Nath Tripathi and constable Sri Pramod Rai. There he got information from the informer that one person is coming from the side of Agwan Baba Mandir, Lallapura for the purpose of selling heroin. Relying upon this information, the complainant tried to procure witnesses but could not succeed. Thereafter the police party proceeded further alongwith informer and as soon as it reached near Varuna Hotel and turned towards Lallapura, the informer pointed out towards a person, who was coming on road in front of Welvet Ice Cream Factory. When the said person was challenged by the police party, he returned back towards Lallapura but he was apprehended by the police party. On being enquired about the name and address and about the fact that there is information that he possessed heroin and that would he like to be searched in front of a Gazetted Officer or a Magistrate, the accused disclosed his name as Ashok Kumar Gupta and he replied to the arresting officer that he may himself take search. On his personal search 52 sachets of heroin kept in a plastic bag was recovered from the right pocket of his pant. The reason for arrest was disclosed to the accused. The sample of the recovered heroin was taken by the police and the same was kept in a container alongwith plastic bag and the container was sealed and sample of seal was prepared. The memo of recovery of heroin (Ex. Ka-1) was prepared at the spot, which was got signed by the witnesses. On the basis of the said recovery memo Case Crime No. 328/1992 u/s 8/21 of the N.D.P.S. Act, 1985, Police Station Sigra district Varanasi was registered against the accused, Chick F.I.R. being Ex. Ka-2 and the copy of G. D. of registration of case being Ex. Ka-3 Investigating Officer inspected the spot and prepared the site plan Ex. Ka-4. The sample of the recovered contraband was taken to Scientific Laboratory by constable Ram Ayodhya Singh in sealed condition. Test report was received from the laboratory mentioning that the recovered contraband is heroin. After the close of the investigation charge-sheet Ex. Ka-5 was submitted against the Appellant-accused.

Charge u/s 21 of the N.D.P.S. Act was framed against the accused on 22.4.1993, which was denied by the accused.

In order to prove its case prosecution examined 6 witnesses namely S.I. Dhananjay Misra P.W. 1, Constable Om Prakash P.W. 2, Constable Pramod Rai P.W. 3, Constable Hanuman Singh P.W. 4, S.I. Pushkar Pratap Singh P.W. 5 and Ram Ayodhya Singh P.W. 6 first informant. S.I. Dhananjay Misra P.W. 1, Constable Om Prakash P.W. 2 and Constable Pramod Rai P.W. 3 are the witnesses of recovery of heroin from the accused. Witness Constable Hanuman Singh P.W. 4 is formal witness, who has prepared chick F.I.R. (Ex. Ka-2) on the basis of recovery (memo) and G. D. registration of case (Ex. Ka-3) and has proved the same. S.I. Pushkar Pratap, P.W. 5 is the Investigating Officer, who has prepared the site plan (Ex. Ka-4) and the charge-sheet (Ex. Ka-5) and has proved the same. Constable Ram Ayodhya Singh P.W. 6 is the person who took the case property in sealed condition to the Scientific Laboratory at Lucknow.

In his statement u/s 313, Cr. P.C. accused denied the entire prosecution story and stated that the police has arrested him from his house and has also stated that he has a betel shop from which police used to take free betel and when the accused demanded payment in lieu thereof, he was falsely implicated in this case.

The defence has examined one witness namely, V. N. Gupta D.W. 1.

On the basis of oral and documentary evidence adduced on behalf of the prosecution, the learned trial court vide judgment and order dated 7.2.1995, convicted the accused u/s 21 of the N.D.P.S. Act and sentenced him as mentioned above. Feeling aggrieved, the present appeal has been preferred by the accused-Appellant.

I have heard learned Counsel for the Appellant and learned A.G.A. and have perused the entire record carefully.

First argument put forward on behalf of Appellant-accused is that occurrence is of 13.30 hours and the place of occurrence is in front of Welvet Ice Cream Factory, which is a busy place, but no public witness of the recovery has been made by the police, which makes the prosecution story doubtful. While the learned A.G.A. submitted that as mentioned in the F.I.R. itself though some persons were found present near the spot, but when the first informant asked them to be a witness and give evidence regarding the fact of recovery, they went away without disclosing their names and addresses. From perusal of the statements of informant P.W. 1 and witness P.W. 2 also it is clear that the members of public present on the spot were asked by the arresting officer to become witnesses of the occurrence but they did not agree for the same. The statements of 3 witnesses of recovery namely ; S. I. Dhananjay Misra P.W. 1, Constable Om Prakash P.W. 2, Constable Pramod Rai P.W. 3, are reliable and there are no material contradictions in their statements as has also been held by the learned trial court. Oral testimony of these witnesses fully corroborates the prosecution case. In my opinion, the police witnesses of fact, in the absence of any material otherwise, are equally reliable and their testimony cannot be rejected merely on the ground that they are police witnesses. No adverse inference can be drawn from the fact that no public witness of recovery has been examined in this case.

Second argument put forward on behalf of the Appellant-accused is that in the recovery memo there is mention of only 52 sachets of heroin alleged to be recovered from the accused. Weight of the recovered heroin was not taken and the same has not been mentioned in any of the prosecution documents. Thus, according to the learned Counsel for the Appellant it cannot be said with exactness as to what quantity of heroin has been recovered from the accused-Appellant and whether this quantity should be termed as small quantity or quantity between small and commercial quantity. It was contended that even if about 1/10 gram of heroin be taken to be in one sachet, the weight of the seized contraband comes out to be about 5 grams, which has been specified as the small quantity. Thus, adverse inference is to be taken against the prosecution on this ground. The learned A.G.A. contended that though the weight of the contraband article recovered could not be taken as no facility for weighing was available at the time of recovery, but no adverse inference can be drawn only on this ground and prosecution story cannot be disbelieved altogether only on this ground. Though it was necessary for the arresting officer that he should have taken the weight of the seized contraband, but in my opinion, in the circumstances of the case, I find that no prejudice has been caused to the accused on this ground. At the most the accused could have claimed benefit on the ground that the recovered article was of small quantity but no suggestion to this effect has been given to any of the witnesses. I find that recovery of contraband cannot be doubted and it stands proved by the prosecution evidence. The test report of the recovered contraband article received from Scientific Laboratory also proves that the recovered contraband article is heroin. Hence, in my opinion, in the circumstances of the case the fact that weight of the recovered contraband could not be taken has no effect on genuineness of the recovery proceedings.

The next argument of the learned Counsel for the Appellant is that there is violation of the provisions of Sections 42, 50, 52 and 57 of the N.D.P.S. Act. Hence, the entire proceedings are vitiated and conviction and sentence is liable to be set aside. To the contrary the learned A.G.A. contended that there is no force in the said argument put forward on behalf of the Appellant because it is case of sudden arrest and the provisions of Section 50 of N.D.P.S. Act are not attracted in such a case. Learned A.G.A. also contended that otherwise also it is proved by the evidence on record that there is sufficient compliance of the provisions of Section 50 and other provisions of the Act. I agree with the contention of the learned A.G.A. Perusal of the recovery memo shows that an opportunity was given to the accused to get his personal search done before the Gazetted Officer or a Magistrate. It has been clearly mentioned in the F.I.R. and also in the statements of the witnesses that before his personal search the accused was asked as to whether he would like to give his search in front of Gazetted Officer or a Magistrate but the accused voluntarily submitted himself for his personal search by the arresting officer and said that he may himself take search. Thus, it cannot be said that there has been any violation of the provisions of Section 50 of the N.D.P.S. Act. Also the prosecution story is fully corroborated by the evidence adduced. The information regarding the possession of illegal contraband was received by the police party, while it was on patrol duty and accused was suddenly apprehended when he was going in front of the Welvet Ice Cream Factory and under these circumstances, it is clear that the police officer had no opportunity to note down this information in writing. At the time of arrest of the accused, he was informed of the grounds for his arrest. No material on record has been pointed by the learned Counsel for the Appellant to show that the accused or the seized contraband article was not produced before the Magistrate without delay as per the provisions of Section 52 of the N.D.P.S. Act. Thus, I find that there has been no violation of other provision of the N.D.P.S. Act. The learned trial court has also recorded a finding to this effect, which needs no interference.

The next argument put forward on behalf of the Appellant-accused is that the seized contraband was not sent to the Scientific Laboratory in sealed condition, which was returned and was sent again after getting it properly sealed which makes the authenticity of the substances recovered doubtful and demolishes the whole prosecution story that the alleged heroin was recovered from the possession of the Appellant-accused. The learned A.G.A pointed out that this point has well been discussed in detail by the learned trial court. The sample of the recovered contraband article was sent to the Scientific Laboratory by constable Ram Ayodhya Singh, P.W. 6, who has stated that he has taken the sample in sealed condition to the Scientific Laboratory and again it was taken by him to Scientific Laboratory after putting standard seal alongwith the sample of the seal. It is also established from the evidence on record that when the contraband article was recovered from the possession of the Appellant-accused it was properly sealed at the spot by the arresting officer. From the statement of witness constable Ram Ayodhya Singh, P.W. 6, it is crystal clear that the sample was sent to the Scientific Laboratory in sealed condition and it makes no difference that another time it was again sent by putting a standard seal. There has been no suggestion to this witness from the defence side to the effect that when the sample was first time sent to Scientific Laboratory it was not in sealed condition. Also no cross-examination has been done from this witness regarding the standard seal. I find that in the present case the sample was sent to the Scientific Laboratory in sealed condition and that no prejudice has been caused to the accused by sending it to Scientific Laboratory again by putting standard seal.

It has further been contended on behalf of the Appellant that the fact of the matter is that the Appellant has a betel shop from which the policemen used to take betel free of cost and the accused used to insist for payment in lieu thereof and due to this reason he has been falsely implicated in this case. It has further been contended by the learned Counsel for the Appellant that this defence version is corroborated by the testimony of the defence witness Vishwanath Gupta, D.W. 1, but the learned trial court has not considered the statement of this witness and thus has committed error. Perusal of the record shows that the Appellant-accused has been arrested by the police of P. S. Sigra, while the defence witness Vishwanath Gupta, D.W. 1 has stated that the policeman of the P. S. Chetganj used to take free betel from the betel shop of the Appellant. There is no material on record to show that as to why due to annoyance of the police of P. S. Chetganj, the police of P. S. Sigra has falsely implicated the Appellant-accused in this case. The witness D.W. 1 has himself stated in his cross-examination that he has come to the Court to depose at the instance of the accused himself. He has stated that the accused was arrested in his presence and his personal search was also taken before him but the arresting officer did not prefer to make him a witness of the occurrence. Thus, from the statement of the defence witness also the prosecution version regarding the place of occurrence is corroborated.

In view of the above I find that the testimony of the witnesses of fact produced on behalf of the prosecution is reliable and there are no material contradictions in their statements and there is nothing on record which could cast doubt on their testimony. The prosecution story is fully corroborated by the oral and documentary evidence. There is no violation of the mandatory provisions of the Act. The testimony of defence witness D.W. 1 does not inspire confidence and is not reliable. I find that the prosecution has been able to prove the charge u/s 21 of the N.D.P.S. Act against the accused beyond reasonable doubt. The Appellant-accused Ashok Kumar Gupta is found guilty of an offence u/s 21 of the N.D.P.S. Act. The judgment and order of the learned trial court convicting the Appellant-accused is just and proper.

As regards the additional sentence of 3 years awarded to the Appellant-accused in default of payment of fine of Rs. one lac, it has been submitted on behalf of the Appellant that it is too harsh and disproportionate. It is further submitted that the Appellant is very poor and is not even able to engage a private counsel and is in jail for more than 8 years, hence he will not be able to pay the amount of fine of Rs. one lac. Keeping in view the above contention of the learned Counsel for the Appellant and also keeping in view the peculiar circumstances of the case, in my opinion, the additional sentence of 3 years awarded by the trial court in default of payment of fine of Rs. one lac is disproportionate and in the circumstances of the case, the ends of justice would be met if in default of payment of fine the Appellant is awarded an additional sentence of one year only instead of 3 years awarded by the trial court.

In the result, the appeal is partly allowed. While upholding the conviction and sentence of the Appellant u/s 21 of the N.D.P.S. Act his sentence of fine is modified to the extent that in default of payment of said fine of Rs. one lac, the Appellant shall undergo an additional sentence for one year only and not for 3 years as awarded by the learned trial court.

Shri P. C. Srivastava, advocate, appointed as amicus curiae in this appeal would get Rs. 3,000 (Rs. three thousand only) as fee.

Let the record of this case be sent back to the District Judge, Varanasi without delay for compliance and for making entry into the relevant record. Compliance report be submitted within two months.