Hasan Ali vs State

Bala Krishna Narayana, J.—Heard Sri Chandra Kesh Misra. amicus curiae for the Appellant and the learned A.G.A. for the State.

The challenge in this appeal by the Appellant is to his conviction u/s 8/20, N.D.P.S. Act and the imposed sentence of ten years'' R.I. and a fine of Rs. one lac and in default of payment of fine a further imprisonment of two years.

The prosecution version as unfolded during the trial is that while the police party comprising of S.S.I. Sri Ramji Lal. S.I. Sri Rajesh Kumar Sharma and constable Jai Prakash and Amarjeet Singh was waiting at Police Check Post Kandhala road for the mukhbir khas to arrive so that arrest of the accused in Case Crime No. 353 of 2003 u/s 395/397, I.P.C. be effected, the police party saw a person coming from the side of Kandhala road carrying a plastic bag on his head. The said person upon seeing the police party became nervous and started moving briskly towards Jahanpur village road. This aroused the suspicion of members of the police party who chased him and intercepted him at 13.30 hours on the Jahanpura village road.

Upon inquiry the said person disclosed his name as Hasan All son of Bakridi alias Dubar resident of mohalla Hasanganj, kasba and thana Nanpara district Bahraich. Upon being further interrogated as to why he started running on seeing the police party, the said Hasan All admitted that he was carrying ''charas'' in the cotton bag which he had procured from Nepal and was taking the same to Haryana for sale. Hasan All was given an option by the police party for being searched before Gazetted Officer or a Magistrate which he declined and requested the police party to search him. Every possible effort was made to obtain public witness but none agreed. Whereupon S.I. Ramji Lal searched the Appellant and recovered a railway ticket No. 56093 from Nanpara Junction to Bareilly from the pocket of his shirt. From the plastic bag which the Appellant was carrying S.I. Ramji Lal recovered a green plastic bag wrapped in multi coloured cotton yarn containing black charas. On the green plastic bag ''Bansal Cloth House, Jodwan Kuan Kairana, district Mujaffarnagar, proprietor Mukesh Chand Jain'' was printed. The said plastic bag contained about 1.75 Kg. charas. The recovered substance was put back in the plastic bag sealed and wrapped in the multi coloured cotton yarn and put back in plastic bag which was stitched. Specimen seal, recovery memo and arrest memo were prepared on the spot . Thereafter, the police party alongwith the Appellant and recovered contraband substance reached Police Station Kairana and on the basis of the recovery memo Ext. Ka-1 Registered Case No. 356 of 2003 against the Appellant. Chick report Ext-Ka-5 was prepared and the relevant G.D. entry Ext. Ka-6 was made at G.D. No. 26 at 16.30 hours on 2.10.2003.

The matter was investigated, statements of witnesses u/s 161, Code of Criminal Procedure were recorded and the site plan was also prepared. The seized substance was sent for chemical examination and the chemical analysis report Ext. Ka-9 was received which indicated that seized substance was charas. After completing the investigation charge-sheet was filed against the accused in the concerned Court and charge u/s 8/20, N.D.P.S. Act was framed against the Appellant who pleaded not guilty and claimed trial.

From the side of the prosecution P.W. 1 S.S.I. Ramji Lal P.W. 2, constable Amarjeet, P.W. 3 Rishipal P.W. 4, S.I. Murat Singh were examined. Recovery memo Ext. Ka-1, Arrest memo, Ext. Ka-2, Form No. 2 Ext. Ka-3 Form No. 3 Ext. Ka-4, Chick report Ext. Ka-5, copy of G.D. entry Ext. Ka-6 naksha najari Ext. Ka-7, Charge-sheet Ext. Ka-8 and Chemical Examination report Ext. Ka-9 were filed as documentary evidence.

Apart from the aforesaid seized contraband substance allegedly recovered from the Appellant Ext. Ka-1 plastic sheet, Ext. 2 and plastic bag Ext. 3, were also produced.

The Appellant in his examination u/s 313, Code of Criminal Procedure denied the incriminating allegations made against him and alleged false implication.

Learned Additional Sessions Judge Fast Track Court Kairana district Muzaffarnagar after considering the evidence on record by his judgment dated 22.5.2006 found the Applicant guilty of having committed an offence u/s 8/20, N.D.P.S. Act and sentenced him to undergo ten years'' R.I. and a fine of Rs. one lac and in default of payment of find a further imprisonment of two years.

Sri Chandra Kesh Misra, amicus curiae submitted that the prosecution miserably failed to prove that the alleged contraband substance recovered from the Appellant''s possession, was charas. In fact no recovery was made from him as alleged in the recovery memo and the Appellant''s conviction u/s 8/20, N.D.P.S. Act can not be sustained.

He further submitted that the prosecution has failed to prove by any cogent and reliable evidence that the Appellant was arrested and recovery of contraband substance was made from him in the manner as alleged in the F.I.R. and the recovery memo.

He next submitted that there being no evidence on record for proving that the contraband substance which was produced before the Court Ext. Ka-1 was the same which was recovered from the Appellant''s possession, the prosecution version was bound to be disbelieved.

He lastly contended that a perusal of the report of the Chemical Analyst and the apparent discrepancy in the weight of the alleged contraband substance recovered from the Appellant and the substance received by the Chemical Analyst shows that the substance which was recovered from the Appellant and sealed, was never sent for chemical examination and thus the reliance placed by the court below on the report of the chemical analyst while coming to the conclusion that the substance allegedly recovered from the Appellant was ''charas'' was totally misplaced and unwarranted.

Learned A.G.A. made his submissions in support of the impugned judgment.

I have examined the submissions made by learned Counsel for the parties and perused the impugned judgment as well as the record of S.S.T. No. 237 of 2003. I am of the view that the submissions made by learned Counsel for the Appellant have considerable force and the same are liable to be accepted.

P.W. 1 Ramji Lal who had searched the Appellant and recovered the contraband substance from the Appellant and who had also prepared the recovery memo, arrest memo and the specimen seal stated in his examination-in-chief that about 1.750 Kgs. charas was recovered from the Appellant on 2.10.2003 which he was carrying in a green plastic bag wrapped in a multi colour cotton yarn on which "Bansal Cloth House, Judwa Kuan Kairana" was printed and which was hidden in a plastic bag.

He further stated that the recovered contraband substance after examination was kept back in the green plastic bag, sealed, wrapped in the multi coloured cotton yarn and put back into the plastic bag which was thereafter stitched by him. The specimen seal was prepared on the spot. P.W. 2 constable Amarjeet Singh reiterated the prosecution version as narrated by P.W. 1 in his statement. P.W. 3 head Moharrir Rishi Pal Singh proved the Chick F.I.R. Ext. Ka-9, G.D. entry Ext. Ka-6. P.W. 4 S.I. Nokhu Singh testified on oath that he had investigated the case and submitted the charge-sheet against the Appellant.

P.W. 1, S.I. Ramji Lal in his cross-examination admitted that the specimen seal was in his name and the seal of the green plastic bag in which the contraband substance was kept bore his name.

Ramji Lal in his cross-examination further admitted that that the green plastic bag in which he had kept the seized contraband substance was sealed by him and put back in the plastic bag which was thereafter stitched by him but the bag containing the contraband substance allegedly recovered from the Appellant which was produced before the Court was neither sealed nor stitched nor "Bansal Cloth House, Judwa Kuan Kalrana" was printed on it. He also admitted that the specimen seal which he had prepared at the time of seizure was also not on the record of the case.

A perusal of the report of the chemical analyst which is on record as Ext. Ka-9 shows that the chemical analyst had received suspected charas weighing 1.680 Kgs. contained in a sealed plastic bag on which "Bansal Cloth House. Judwa Kuan Kalrana" was printed. The report further shows that plastic bag containing suspected charas bore the seal on which U.P.P. was inscribed. The report does not show that the plastic bag was accompanied with the specimen seal. From the recitals contained in the report of chemical analyst discrepancy of about 70 grams in the quantity of the contraband substance allegedly recovered from the Appellant''s possession and the contraband substance sent for chemical examination is apparent which the prosecution has miserably failed to explain.

It is the admitted case of the prosecution that the entire contraband substance which was seized from the Appellant was sent for chemical examination and no separate sample was drawn.

Thus, after carefully analysing the testimonies of P.W. 1. P.W. 2 and the report of the chemical analyst and the other evidence on record, the irresistible conclusion which follows is that the alleged contraband substance which was recovered from the Appellant''s possession was neither sent for chemical examination nor produced before the Court. The specimen seal was not brought on record by the prosecution. The seal on the green plastic bag in which suspected contraband substance was kept bore the name of S.I. Ramji Lal while the plastic bag containing the suspected contraband substance which was received by the chemical analyst was neither accompanied by specimen seal nor it bore the seal of S.I. Ramji Lal. Rather the plastic bag containing suspected charas received by the chemical analyst bore the seal on which the monogram of U.P.P. was inscribed. There is also no explanation for discrepancy of about 70 grams in the quantity of the suspected contraband substance recovered from the Appellant and the quantity of contraband substance which was sent for chemical examination, which does give rise to a very strong suspicion that either the recovered suspected contraband substance was not sent for chemical examination or the same had been tampered with.

For the aforesaid reasons I have no hesitation in holding that the prosecution has miserably failed to prove the charge brought against the Appellant beyond a reasonable doubt and the conviction of the Appellant on the basis of the evidence adduced by the prosecution before the court below can not be sustained.

The criminal appeal is allowed. The judgment and order dated 22.5.2006, passed by Additional Session Judge F.T.C. 2, Kairana, district Muzaffarnagar in Special Case No. 237 of 2003, State v. Hasan Ali, convicting the Appellant u/s 8/20, N.D.P.S. Act and imposing sentence of ten years'' R.I. and a fine of Rs. one lac and in default of payment of fine a further imprisonment of two years is hereby set aside.

The Appellant is acquitted of the charge u/s 8/20 of the N.D.P.S. Act.

The Appellant shall be released forthwith.