Ramesh Kumar vs State of Uttar Pradesh

Ajay Kumar Singh, J.—This appeal has been preferred against the judgment and order dated 13.3.1990, passed by Sri Dharam Pal, the then I Ind Additional District and Sessions Judge, Kanpur in Sessions Trial No. 530 of 1988, State v. Ramesh Kumar u/s 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) Police Station Govindnagar, District Kanpur Nagar, convicting and sentencing the accused to 10 years rigorous imprisonment.

The prosecution case is that in the night in between 29th/30th June, 1987 when first informant Sub-Inspector Satyaveer Singh alongwith head constable Hakim Singh was on patrol duty and reached near H.I.G. Crossing, Jaipur Bikaner Bank one person was seen coming from canal. On seeing the police party that person turned back and started moving swiftly. On the suspicion being raised he was challenged by the first informant complainant and was apprehended at about 1.15 a.m. On inquiry that person disclosed his name as Ramesh Kumar and on his personal search 20 grams opium kept in a polythene was recovered from right pocket of his pant. The seized article was sealed after keeping it in a cloth and sample of seal was prepared. Due to sudden arrest and it being dead night no public witness could be available at that time of recovery. A recovery memo was prepared at the spot and was read over to the witnesses and their signatures were obtained on it. On the basis of recovery memo first information report was registered at the Police Station.

Charge u/s 18 of the Act was framed against the accused who denied the charge.

To prove the charge the prosecution examined four witnesses namely S.I. Satyaveer Singh P.W. 1 and Hakim Singh, P.W. 2 are the witnesses of arrest and seizure. Sub-Inspector Chandra Kiran Sharma, P.W. 3 is the Investigating Officer, who interrogated the witnesses and prepared a site plan (Exht. Ka-2) and sent the seized article for chemical analysis regarding which report (Exht. Ka-3) was received. After completing the investigation, Investigating Officer submitted charge-sheet u/s 18 of the Act against the accused. The witness has also proved chick first information report (Exht. Ka-5) and copy of G.D. (Exht. Ka-6). Constable Shyam Sunder, P.W. 4 filed an affidavit in which he has stated that he took seized articles to Agra as per order of the Chief Metropolitan Magistrate, Kanpur Nagar and till then the seized article remained with him and its seal was neither tampered nor any change was permitted to be made therein.

In his statement u/s 313, Cr. P.C. the accused has denied entire prosecution case and has stated that he has been falsely implicated due to enmity. On the basis of oral and documentary evidence on record the learned trial court found the Appellant-accused guilty of the charge u/s 18 of the Act and convicted and sentenced him, as mentioned above. Feeling aggrieved the present appeal has been filed by the accused.

Heard learned Counsel for the Appellant, learned A.G.A. and has gone through the record.

The main argument put forward on behalf of Appellant accused is that there has been violation of provision of Section 50 of the Act and the whole recovery proceedings are vitiated only on this ground. Reliance was placed on the decisions in (1) Babu v. State of Kerala, 2000 (1) JIC 275 (SC): 1999 (3) ACR 2496 (SC); (2)Raju Gurang and Anr. v. Union of India, 2007 (2) JIC 32 (All): 2007 (2) ACR 1993 and (3) Jamil v. State of U.P., 2006 (1) JIC 100 (All): 2005 (3) ACR 3047. To the contrary learned A.G.A. argued that it is a case of sudden arrest and there is a chance recovery hence provision of Section 50 of the Act are not attracted. Learned A.G.A. in this regard has placed reliance onAzadar Hussain v. State of U.P. and others, 2004 (2) JIC 410 (All): 2004 (3) ACR 2224, I agree with the contention of learned A.G.A. It is clear from recovery memo that when the police party was on patrol duty a person was seen coming from the side of canal, who on seeing the police party turned back and started moving swiftly. On the suspicion being raised he was challenged by the police party and was apprehended and on his personal search 20 grams of opium was recovered from right pocket of his pant. This fact is also proved by the statement of prosecution witnesses. Thus, I find that it is a case of sudden arrest and hence there was no occasion for the police party to have made the accused aware of his right of personal search before a Gazetted Officer or Magistrate. In my opinion in such circumstances provision of Section 50 of the Act are not attracted.

It has been next argued on behalf of Appellant accused that there has been no independent witness in this case. Hence, recovery has become doubtful and inference will be taken against the prosecution. It is clear from the recovery memo that arrest of the applicant was done at 1.15 a.m., hence there is every likelihood that no public witness might have been present at that time at the place of occurrence. The witness S.I. Satyaveer Singh P.W. 1 has categorically stated that he made an attempt to procure witnesses but in view of the fact that the accused was arrested in the night (at 1.15 a.m.) no witness could be available at the place of occurrence. Thus, under these circumstances only police witnesses (members of police party) could be available as witnesses of recovery. There is nothing on record to show that the police witnesses in any way were biased with the Appellant accused. In my opinion the testimony of police witnesses cannot be disbelieved only on the ground that the witnesses are the police officers/officials. Thus, in peculiar circumstances of the case, I find that merely on the ground that there is no public witness of recovery the genuineness of recovery proceedings cannot be doubted.

It has been next argued on behalf of accused-Appellant that there has been violation of Sections 52, 55 and 57 of the Act and hence recovery proceedings are vitiated and conviction on this basis cannot be sustained. Reliance in this regard was placed on the judgments in (1) Munna v. State, 2002 JIC 890 (All): 2002 (2) ACR 1678; (2) Jamil v. State, 2006 (1) JIC 100 (All): 2005 (3) ACR 3047 and (3) Azadar Hussain v. State, 2004 (2) JIC 410 (All): 2004 (3) ACR 2224. To the contrary learned A.G.A. argued that there is no violation of any of these provisions of the Act. There is no evidence on record which can suggest that arrested person and seized articles were not forwarded to the officer-in-charge of the nearest Police Station or that the person arrested and article seized were not produced before the Magistrate without any delay. There is also no evidence to show that information of seizure and arrest was not given to the immediate superior officer within 48 hours. From a bare perusal of aforesaid record I find that no suggestion from the defence side has been given to the prosecution witnesses. Thus, I find that as contended by learned A.G.A. there has been no violation of provision of Sections 52, 55 and 57 of the Act. Moreover, it is settled principle of law that the above provision of the Act are not mandatory and if there has been any violation of the same it will not create any doubt upon the genuineness of recovery proceeding.

It has also been contended on behalf of accused-Appellant that recovered contraband article has not been produced before the Court and hence conviction and sentence is liable to be set aside. This contention of learned Counsel for the accused Appellant is misconceived as it is abundantly clear from the statement of witnesses of recovery, i.e., P.W. 1 that contraband article was produced before the Court and was proved by the witnesses.

No other point was pressed by the learned Counsel for the Appellant.

In view of the above I find that from oral and documentary evidence produced the prosecution has been able to prove its case beyond reasonable doubt and the charge levelled against him stands proved.

In the result appeal fails and is dismissed. The conviction and sentence of the Appellant is maintained.

A certified copy of this judgment alongwith lower court record be sent to the District Judge, Kanpur Nagar, without delay for compliance. The compliance report be submitted within two months.