Saleem vs State of U.P.

Bala Krishna Narayana, J.—Heard learned Counsel for the appellant and learned A.G.A.

The appellant upon being convicted for the offence u/s 8/20 of N.D.P.S. Act by the judgment dated 4.9.2010 passed by Additional Sessions Judge/F.T.C. No. 6, Bareilly in Sessions Trial No. 3 of 2010, State v. Saleem and sentenced to undergo rigorous imprisonment of 15 years and fine of Rs. 1,50,000/- and in default of payment of fine further rigorous imprisonment of one year is seeking enlargement on bail during the pendency of appeal.

The prosecution case in short is that on 9.4.2008 while the police party comprising of S.O.G. In-Charge Range Sri Prakash Chandra, S.I. Sri Sanjay Kumar Singh, Head Constables Rashid Ali and Jagat Pal Singh, Constables Room Singh, Mehndi Hasan, Dinesh Singh and Zahir Khan driver of the Tata Sumo vehicle in which they were travelling in search of a wanted criminal and In-Charge Ruhelkhand out post Sri Ajay Shrotiya and Constable Natthu Singh whom the police party met on Dori crossing Pilibhit road noticed a man who upon seeing the police personnels tried to run away which aroused suspicion of the members of the police party chased him and caught him at about 5.45 p.m. near the Signboard of Sunrise Enclave. Upon interrogation, he disclosed that his name was Saleem S/o Ismail R/o Dhoura Tanda, P.S. Bhojipura. He further disclosed that he was carrying 3 kg Charas in his bag. He thereafter, took out a Chasras like substance from his bag which was wrapped in a cream colour tape weight whereof was approximately 3 kg. The prosecution case further is that the appellant was given an option of being searched before a Gazetted Officer or a Magistrate which he declined and informed the police party that apart from the Charas which he was carrying in his bag he did not possess any other narcotic substance. A sample of 15 gms was drawn from the substance allegedly recovered from the appellant kept in an empty match box which was wrapped in a piece of cloth and sealed. Remaining substance was kept in a separate piece of cloth, stitched and sealed. Recovery memo was prepared on the spot. Specimen seal was also prepared on the spot. Although large number of people had gathered at the place of occurrence but no one agreed to witness the arrest and recovery.

On the same day at about 19.30 hours the FIR of the incident was registered at P.S. Baradari. The matter was investigated by S.I. J.B. Lal who after completing the investigation filed a chargesheet in the court whereupon the Case Crime No. 435 of 2008 was registered and cognizance was taken. The sample drawn from the substance allegedly recovered from the appellant was sent for chemical examination and as per the report of the chemical analyst which is on record as Exhibit Ka8 the sample contained Charas.

The court below after taking into consideration entire evidence on record oral as well as documentary came to the conclusion that the prosecution had succeeded in proving beyond all reasonable doubt that the appellant was found in possession of 3 kg illicit Charas and accordingly convicted him u/s 8/20 of N.D.P.S. Act and sentenced him accordingly.

Learned Counsel for the appellant submitted that admittedly only one sample of 15 gms was drawn from the substance which was allegedly recovered from the appellant but not only the remaining substance which was recovered from the appellant after the sample had been drawn, the sample itself was also produced before the trial court which shows that the sample drawn on the spot was never sent for chemical analysis.

He further submitted that as per the report of the chemical analyst the sample which was received by him was sealed and the seal bore the name of S.I. A.K. Dixit who was neither the member of the police party which had arrested the appellant and seized contraband article from him nor he was present on the spot and thus, the finding recorded by the court below that the substance recovered from the appellant was Charas by placing reliance on the report of the chemical analyst Ex. Ka8 is wholly erroneous and the consequent conviction of the appellant on the basis of the aforesaid finding cannot be sustained.

He further submitted that there was no compliance with the requirement of Section 57 of the N.D.P.S. Act as admittedly the empowered officer who had arrested the appellant and recovered contraband article from the appellant had not submitted a written report giving full particulars of the arrest and seizure to his superior officer.

Learned Counsel for the appellant next submitted that the prosecution failed to lead any link evidence to show that the contraband substance which was produced before the court at the time of trial was the same which was recovered from him as neither the bag in which it was kept and sealed nor the cream colour tape with which it was wrapped were produced before the trial court.

Learned Counsel for the appellant lastly submitted that the appellant is in jail since 9.4.2008 and has no criminal antecedent to his credit and since there is no likelihood of this appeal be heard in near future he is entitled to be enlarged on bail.

Per contra learned A.G.A. opposed the prayer for bail and submitted that unless the appellant satisfies the parameters of Section 37 of the NDPS Act he cannot be enlarged on bail.

After having carefully examined the submissions advanced by the learned Counsel for the appellant and perused the impugned judgment and the record of S.T. No. 3 of 2010, I am satisfied that there is no reason for believing that the appellant has committed the offence for which he has been convicted and there is no likelihood of his committing any other offence in the event of his being enlarged on bail.

Let the appellant Saleem be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned in Sessions Trial No. 3 of 2010, Case Crime No. 435 of 2008, under Sections 8/20 NDPS Act, P.S. Baradari, District Bareilly.

Realization of fine shall remain stayed during the pendency of the present appeal.