High Court
Case Details
Court No. - 68 Case :- CRIMINAL APPEAL No. - 5969 of 2015 Appellant :- Mithlesh Kumar Mallah Respondent :- State of U.P. Counsel for Appellant :- Kuldeep Johri,Dileep Kumar,Rajrshi Gupta Counsel for Respondent :- G.A. Hon'ble Ali Zamin,J. Heard Sri Rajrshi Gupta and Sri Rahul Saxena, learned counsel for the appellant, Sri Vijay Kumar Pandey and Sri Abhishek Singh, learned Brief Holder for the State and perused the material on record. The appellant has assailed the judgment and order dated 5.11.2015 passed in Session Trial No. 39 of 2013, arsing out of Case Crime No. 363 of 2013, under Section 18/20 NDPS Act, Police Station Hajara, District Pilibhit, by which the Additional District and Session Judge, Court No. 1, Pilibhit has convicted him under Section 8/20 NDPS Act for 10 years rigorous imprisonment along with a fine of Rs. 1,00,000/-. In default of payment of fine, the appellant would further undergo for the period of one year as additional imprisonment. As per prosecution version, on 21.08.2013, Station Officer Manoj Kumar Birla along with H.C.P. 36 Kanhai Lal, Constable 268 Somnath, Constable 129 Ravi Kumar, Constable 298 Kamlesh Kumar and Driver Rajendra Kumar Sharma was busy in checking of suspected vehicle and goods. Upon an information received by Mukhbir that a man carrying charas was going on foot from Sampoorna Nagar to Ramnagar, he reached the spot at about 16:00 hours, apprehended the appellant and apprised that under the provision of Section 50 of NDPS Act, if he so desires, he may be brought before any Magistrate or Gazetted Officer for his personal search, on which the appellant reposed faith upon him on which, a consent letter was got prepared by H.C.P. 36 Kanhai Lal which was 1 of 6 duly signed by the appellant and some passers-by were asked to become witness but they denied for the same. On searching the appellant, four packets of charas were recovered wrapped in angoucha tied with the waist and when he was asked to show the licence regarding the same, he could not produce the same. On weighing the packets found from him, it was found that the total quantity of the charas recovered from him was 3 kg which was kept in four packets i.e. two packets, each containing 1 kg and two thin packets containing half kg, the same was sealed and specimen seal was put and recovery memo Ext. Ka 3 was prepared in hand writing of H.C.P. 36 Kanhai Lal under dictation of Station Officer and 50 gm sample was taken from the aforesaid charas and a case crime no. 363 of 2013, under Section 8/20 NDPS Act was registered on 21.08.2013 at about 18:05 hours. P.W.-1, S.I Manoj Kumar Birla has proved the consent letter and recovery memo of four packets of charas. On the basis of recovery memo, case crime no. 363 of 2013, under Section 8/20 NDPS Act was registered on 21.8.2013 at about 18:05 hours. Investigation of the case was entrusted to Inspector Virendra Singh and on his transfer, the same was entrusted to S.I. Sher Bahadur Singh who prepared spot map and proved the same as Ext. Ka-8. He also sent the sample for chemical examination. Thereafter, investigation was entrusted to Inspector Anil Kumar Sharma who, after receiving the FSL report, submitted charge sheet (Ext. Ka-7). To prove its case, prosecution has produced PW-1, S.I. Manoj Kumar Birla, who has supported the prosecution case and proved recovery memo Ext. Ka 3, recovered article and specimen seal on the same as Ext. Ka2 in the hand writing of Head Constable Kanhai Lal, PW-2, Constable H.P. Somnath has proved the consent letter Ext. Ka4, in his hand writing. PW-3-Constable Suresh Chandra Tiwari has proved the specimen seal and deposited to Forensic Laboratory on 26.8.2013 through Ext. Ka5 and Ext. Ka6, PW-6, Sher Bahadur Singh 2 of 6 has proved the spot map Ext. Ka 8 from where a recovery memo was made and PW-5-Anil Kumar Sharma has proved the charge sheet as Ext. Ka-7, P.W. - 7-Head Constable Cheetar Mal Gautam has proved chik and G.D. as Exts. Ka9 & 10. In documentary evidence, he has proved recovery memo, consenting letter, arrest memo. As per recovery memo Ext. Ka 3 proved by P.W. 1 Manoj Kumar Birla, the informant, four packet of charas of 1 kg each and 2 half kg each were recovered which were wrapped in angoucha tied with the waist and sample of 50 gm was drawn. After the examination of prosecution witnesses, statement of accused under Section 313 Cr.P.C. was recorded who denied all the evidence adduced against him and stated that he has been falsely implicated due to animosity but he did not adduce any defence evidence in his support.
Facts
Learned Trial Court after hearing to the parties, appreciating the evidence led by the prosecution held the appellant guilty for committing the offence under Section 8/20 NDPS Act and convicted him as disclosed in para 2 of the judgement. Learned counsel for the appellant submitted that from the recovery memo, it is not clear whether the sample was taken from all the four packets or from a single packet. In the recovery memo, it is only mentioned that from the recovered contraband article, 50 gm charas was taken for sample. If prosecution case is taken to be true on its face value, it is not clear that from which packet sample was taken in that situation benefit of doubt will go in favour of accused. At the most, it may be presumed that from a packet of lesser quantity i.e. half kg which is less than the commercial quantity, sample was taken. Hence, the punishment of 10 years rigorous imprisonment extending 3 of 6 fine of Rs. 1,00,000/- awarded to the appellant is not in consonance of law and is liable to be set aside.
Legal Reasoning
1,00,000/-, therefore, no interference is required by this Court in this appeal. Section (II) of Standing Order No. 1/89 dated 13.06.1989 provides the general procedure for sampling, storage and reads as under : - 2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot and as per Section 2.4, in the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 4 of 6 Thus, from the aforesaid Standing Order, it is clear that from each of the packet of the container, sample in duplicate has to be drawn. As per recovery memo, a sample of 50 gram in duplicate was drawn by the informant. He was expected to draw the sample in duplicate from each of the container/packet but in the instant case, the informant has not adhered to the Standing Order in drawing the sample. However, in statement before the trial court, he has stated that from all the packets, 50 gram sample was taken which in view of the recovery memo appears to be an improvement, therefore, not considerable. In view of the aforesaid general order and recovery from possession of the appellant and drawing of the sample is proved from evidence of informant P.W. 1 Manoj Kumar Birla and witness P.W. 2 Somnath and sending of the sample is also proved by witness P.W. 3 Suresh Chandra and as per forensic report, the recovered material is charas. Thus, the recovery of charas from the possession of the appellant is proved. However, from the evidence, it is borne out that recovery of 4 packets were made, sample was drawn from a single packet and considering the evidence on record, it will be proper to presume that sample was taken from single packet having lesser quantity i.e. of half kg charas. In that situation, the recovery of the charas is more than smaller quantity and less than commercial quantity for which punishment is provided up to 10 years and fine of Rs. 1,00,000/-. The appellant has passed a custody period of more than 9 years. In view of the facts and circumstances of the case as discussed above, it would be just and proper to punish him for a period already undergone by him and with a fine of Rs. 10,000/-. Accordingly, appellant is convicted and sentenced for a period already undergone by him and with a fine of Rs. 10,000/-, in default thereof, 15 days 5 of 6 further imprisonment shall be awarded to the appellant. Consequently, the appeal is partly allowed. Office is directed to transmit the copy of the order to the court concerned for compliance. Order Date :- 21.12.2022 SA Digitally signed by :- SALMAN ALI High Court of Judicature at Allahabad 6 of 6
Arguments
Learned A.G.A. opposed the argument of learned counsel for the appellant and submitted that in statement before the trial court, arresting officer has stated that from each packet, sample was taken. Thus, he proved through his evidence that sample was taken from all the four packets which were recovered from the possession of the appellant containing 3 kg charas which is more than commercial quantity, hence taking into account, the aforesaid recovery, punishment of rigorous imprisonment of 10 years extending fine of Rs. 1,00,000/- is wholly justified. Having heard the submission of the parties and considering the aforesaid aspects of the matter, the trial court has rightly convicted the accused-appellant for a period of 10 years extending fine of Rs.