State of U.P. vs Ram Singh

This application for leave to appeal arises out of a judgment dated 30.6.2009 passed by learned Additional Sessions Judge, Fast Track Court, Barabanki in Session Trial Nos. 133 of 1999 recording acquittal of accused respondent Ram Singh u/s 8/18 Narcotic Drugs and Psychotropic Substance Act (for short ''the N.D.P.S. Act''), primarily on the ground that the alleged recovery of the contraband substance did not inspire the confidence of the court.

As per prosecution case narrated in the impugned judgment, on 11.8.1999, A.S.I. Om Prakash Singh with police force had gone out of police station in search of the accused of Case Crime Nos. 174 of 1999 under Sections 302, 201 I.P.C. When he reached the place known as Gandhi Gram Chauraha, he received information to the effect that one Israr Teli, son of Moharram Ali had gone towards village Varaiya on a motorcycle to bring opium, a contraband item, and was expected to return soon. On receiving this information, the police officials moved towards village Varaiya. When the A.S.I. with police force reached near the Samadhi of Baba Raggha Das, he was informed by the informant that two persons were coming on a black motorcycle from the direction of Gandhi Gram and one of them was Israr Teli. The moment police force proceeded further, the accused persons having noticed them, abandoned the motorcycle and tried to run away but one of them was caught by police. His name was disclosed as Ram Singh, son of Drigpal Verma. He disclosed the identity of the other person as Israr Teli. He also disclosed that he was carrying 700 gram of opium which he had sold to Israr Teli for Rs. 10,000/- and he was carrying it for Israr Teli to be taken by him to village Tikra, and the motorcycle also belonged to him. During search of accused Ram Singh, a contraband item (opium) was found kept in a small packet which he was carrying in a plastic bag. It also appears that the accused was given an offer as required u/s 50 of the N.D.P.S. Act to the effect as to whether he wanted to be searched in the presence of a Magistrate or a gazetted officer. However, the accused opted for search by the police official and his consent was taken down in writing, and finally, the opium was recovered. After completing procedural formalities, accused was challaned and was tried upon by the Sessions Court. On being charged u/s 8/18 of the N.D.P.S. Act, he denied the allegation and pleaded for trial.

Prosecution examined three witnesses, namely A.S.I. Om Prakash Singh (PW-1), Constable Rajesh Chand (PW-2) and S.I. Ram Bilas (PW-3) besides submitting some documentary evidence. In his statement u/s 313 Cr.P.C. the accused respondent denied the allegations and prosecution evidence and gave the explanation that he was picked up from his house and then falsely implicated in this case. In his defence, the accused also produced Ramesh Prasad (DW-1) Nangoo (DW-2) and Drigpal (DW-3) besides producing some documentary evidence. A.S.I. Om Prakash Singh (PW-1) supported the version reported in F.I.R. Similarly, other police official Rajesh Chand (P.W-2) also supported the prosecution case.

Trial court, on careful appreciation of evidence, found a number of infirmities in the prosecution case. It was noticed that G.D. Entry to show that the police officials were on petrol only to apprehend the accused in a criminal case was not produced. According to A.S.I. Om Prakash Singh (PW-1), the police party reached the spot on motorcycle, whereas as per the statement of Constable Rajesh Chand (PW-2) the motorcycle which was recovered by the police belonged to Israr Teli, who was not made an accused. This was also admitted by A.S.I. that he was not given any information about accused Ram Singh and further he did not receive any prior information about the contraband.

We have heard learned Counsel for State and also perused the appeal paper-book.

According to learned Counsel, the trial court has recorded the acquittal of accused Ram Singh only on the ground that Israr Teli, who was accompanying him on the motorcycle, was not made an accused. According to the learned Counsel, accused was arrested on the spot with a contraband item and the recovery is also supported by the evidence of police personnel. As such, there is enough evidence to accept the prosecution case.

We are, thus, of the view that for the reason that the G.D. entry showing the departure of police party from the police station was not produced before the court so as to establish that the information was received during petrolling, the prosecution story becomes highly doubtful. Even the report regarding arrest of accused and seizure of contraband was not given in writing in towards compliance of the mandatory provision of Section 57 of the N.D.P.S. Act and thus the superior officer was not informed. Needless to say that it is a necessary safeguard against false implication of accused which was not followed. Besides, Israr Teli about whom the information had been received and whose motorcycle was recovered by the police with a contraband item, was not made an accused and there is no explanation whatsoever by the prosecution in that regard. The quantity being only 700 grams, is a non commercial quantity.

In the premise discussed hereinabove, we do not find any ground to interfere with the judgment of trial court. In a catena of decisions rendered by the Supreme Court, it has been held that if on appreciation of evidence, two views are possible, the view taken by lower court in the facts and circumstances of the case in favour of the accused should be accepted as the probable and reasonable view.

Hence, this application for leave to appeal is dismissed.