SANTOSH KUMAR TRIPATHI Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS criminal appeal has been preferred by appellant Santosh Kumar Tripathi under section 374 (2) of Code of Criminal Procedure (For short Cr.P.C.) against the judgment and order dated 23.7.2009 passed by Additional Sessions Jude /FTC II Lucknow in Crl. Misc. Case No. 155 of 2007 State Vs. Santosh Kumar Tripathi relating to case crime no. 155 of 2007 under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act (For short NDPS Act) P.S. GRP, Charbagh, District Lucknow, whereby the appellant was convicted and sentenced under section 8/20 of NDPS Act with rigorous imprisonment of 10 years and fine of Rs. 1,00,000/ -, in default thereof to undergo one year and six month additional simple imprisonment.

(2.) RELEVANT facts for deciding this appeal are that on 8.6.2007 at 12.30 P.M., S.I. Jai Narain Singh alongwith Constable Shesh Dhar Shukla and Constable Ashok Kumar Rai proceeded after making entry in GD No. 27 at 10.40 a.m. from police station GRP, Charbagh, Lucknow for checking and search of suspected criminals. When the police personnels were on patrolling duty and were proceeding towards plat -form no. 8 -9 from plat -form no. 1, an informer informed that a person who is sitting in front of Khamman Pir Baba has tightened charas with his body and is going to sale it somewhere. If efforts are made without any further delay, he may be arrested with contraband. Believing this information, the police personnels took personal search of each other and after satisfying that nobody is possessing any contraband or illegal thing, they tried to collect independent witness and asked the passengers available on plate -form No. 8 -9, but they declined to be the witness. Consequently, the police personnels proceeded towards Majar of Khamman Pir Baba. When they reached near tea canteen with informer, the informer pointed out a person. Thereafter the informer left the place. Thereafter the police personnels proceeded towards him. Seeing it that person (accused appellant) hurriedly moved towards east. He was chased and apprehended on plat -form no. 8 -9 at about 12.30 p.m. by police party. On interrogation, the accused appellant told his name, parentage and address. SI Jai Narain Singh (P.W.1) apprised about his right that he may be searched before Magistrate or Gazetted Officer as he was suspected to have contraband. The accused appellant did not exercise his right to be searched as aforesaid and allowed the police party to take his search. He also executed consent memo (Ext. Ka -2). On search, the police party recovered total seven packets from the possession of the accused appellant. Two packets were tightened with waist in cotton bag, two packets were tightened in the thighs with the help of anklet and three packets were found inside the reddish coloured bag kept by him. It was weighted on plate -form through weighing scale of one fruit seller which was brought by Constable Shesh Dhar Shukla (P.W. 2). The weight of the seven packets was found to be 8 Kg. P.W. 1 S.I. Jai Narain Singh took out some material from one packet out of 7 and sniffed the same and found it to be charas. Thereafter all the packets recovered from the possession of the accused appellant were sealed on spot the bag of accused appellant. The accused appellant was arrested by the police after disclosing his crime. A recovery memo (Ext. Ka -1) was drawn by SI Jai Narain Singh on the spot and after getting it witnessed from the Constable Shesh Dhar Shukla and Ashok Kumar Rai. A copy of the recovery memo was handed over to the accused appellant whose signature was also obtained on the recovery memo. The accused appellant also signed the consent memo (Ext Ka -2). Thereafter the accused appellant was brought to police station along with recovered contraband.

(3.) DURING the course of investigation, Circle Officer Sunita Singh, Eastern -Northern Railway -I, Lucknow vide order dated 11.6.2007 withdrew the investigation of this case from S.I. Banshraj Nigam and entrusted the same to S.O. Vimal Kishore Srivastava, Police Station GRP, Lucknow. During the course of investigation, the sample of contraband was taken by order of Special Judge, EC Act on 11.7.2007. The Court sent the same for chemical examination to Forensic Science Laboratory, Mahanagar, Lucknow ( for short "FSL"). After collecting the report of chemical examination and report of Forensic Science Laboratory disclosing the material as Charas, completing all the formalities of investigation and preparation of site plan (Ext. Ka -3), the police submitted charge -sheet (Ext Ka 4) against the accused appellant under section 8/20 of the NDPS Act. The court took cognizance of the case. Charge under section 8/20 of the NDPS Act was framed against the accused appellant on 31.10.2007. The accused appellant denied the charge levelled against him and claimed to be tried. To prove its case, the prosecution examined SI Jai Karan Singh as P.W. 1 and Constable Shesh Dhar Shukla as P.W -2. They are witnesses of fact and stated about the incident and proved recovery memo and consent memo executed by the accused appellant. S.O. Vimal Kishore Srivastava was examined as P.W. 3, who was Investigating Officer of this case and recorded the statement of witnesses, prepared site plan, sent contraband for chemical examination, collected the report of FSL and after completing all the formalities submitted charge -sheet against the accused appellant. Thereafter prosecution closed its evidence. 3.Accused appellant was examined under section 313 Cr.P.C. wherein the allegation and circumstances against him were denied by the accused appellant and also claimed his false implication. He also stated that he had gone to pay Rs. 10,000/ - to one Shambhoo Gupta, R/O Railway Colony, Lucknow, from whom he had taken loan, but the police snatched the said amount from him and falsely implicated in this case. It was also alleged by the accused appellant that sample was changed. Accused appellant did not adduce any defence. The trial court after considering the material available on record and the evidence adduced by the prosecution convicted and sentenced the accused appellant vide impugned judgement and order dated 23.7.2009. Hence this appeal. 4.The trail court while convicting and sentencing the accused appellant held that compliance of section 50 of NDPS Act has been made. The plea of defence regarding non compliance of section 55 of NDPS Act was raised on the ground that register kept in Malkhana of police station GRP, Lucknow was not produced, therefore, prosecution could not establish that recovered article was kept in the Malkhana of police station GRP, Lucknow. The plea of want of independent witness, change of sample, non production of link evidence of taking and sending sample were rejected after relying upon the judgement of the Bombay High Court in Refakat Ali Khan Vs. State of Maharastra, 1993Cr.LJ 3844 wherein it was ruled that procedural irregularity cannot be the basis of vitiating trial. The learned trial Court also relied upon the judgement of Apex Court in Hamid Bhal Aazam Bhai Malik Vs. State of Gujarat 2009 (1)JIC 687 SC, wherein it has been held that any mistake in implementing any legal provision cannot give any reason to disbelieve the whole prosecution story and ultimately convicted the appellant.