- (1.) S. S. Kulshrestha, J. This appeal has been brought against the judgment and order dated 7-10-1999 passed by special Judge/iv Addl. Sessions Judge, Ghazipur in Crl. Case No. 206/97 whereby convicting the appellant for the offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substance Act (the Act) and sentencing him to 10 years rigorous imprisonment and a fine of Rs. 1,00,000 and further in default of the payment of the fine, 2 years rigorous imprisonment was also awarded. It is said that the learned Special Judge has not properly appreciated the materials on record to arrive at the conclusion. Further the mandatory provisions as contained under Sections 42 (1) and (2) of the Act have not been adhered to and no information was taken down in writing by the empowered officer nor it was sent to immediate senior officer. Further the entire search was concocted there at the police station. No public witness was collected nor search of the accused appellant or his family members was made by the raiding party. Recovery memo as such is also said to be fabricated when admittedly as per the prosecution version seven persons out of eighteen persons raided the house of the accused appellant whereas the recovery memo bears the signatures of 15 persons, which would render its preparation not at the place of search but elsewhere. Further the recovered material was unduly kept by the PW 3 in violation of the procedure provided under Section 52 of the Act. The material evidence was also not produced by the prosecution.
(2.) IN order to facilitate the disposal of this appeal a brief resume of the facts may be made. Sri R. S. Yadav, PW 3 who was at the relevant time posted as INspector of Central Bureau of Narcotic Preventive Cell at Ghazipur (CBNP Cell) searched the house of one Sri Surya Nath Maurya on 10-7-1997 in Village Bahariabad under P. S. Bahariabad, Ghazipur. He recovered contraband substance (heroin) from the possession of Sri Surya Nath Maurya who in his statement made the disclosure that contraband narcotic substance (heroin) was supplied to him by one Sri Babu Lal Thakur (who is herein the appellant ). On such information after second day i. e. on 12-7-1997 INspector Sri R. S. Yadav organized a raid at the house of Sri Babu Lal Thakur. The raiding party was consisted of three INspectors of CBNP Cell namely S/sri (i) O. P. Verma, (ii) OP. Gupta, (iii) Jamuna Ram and two CBNP Cell Constables S/sri (i) Shiv Shanker Singh, (ii) Kamlakar Pandey and one Jeep Driver Sri V. N. Gupta. They contacted Sri Bhullan Yadav, S. H. O. , P. S. Suhwal and also apprised them about their intended mission. S. H. O. Suhwal and five constables also joined the raiding party for the purpose. At about 12. 15 p. m. the members of the raiding party surrounded the house of the appellant and they after taking all necessary precautions and verifying that no body is keeping any contraband, Sri Babu Lal Yadav, accused appellant was called from his house who agreed to have the search of his house effected and himself called independent public witnesses namely S/sri Shiv Poojan Yadav and Ambika Prasad Paswan. Out of the raiding party seven persons namely S/sri R. S. Yadav and Jamuna Ram (INspectors), Constables S/sri Shiv Shankar and Kamlakar Pandey from CBNP Cell, Sri Bullan Yadav, S. H. O. P. S. Suihwal and public witnesses S/sri Shiv Poojan Yadav and Ambika Prasad Paswan entered into the house of the accused appellant. IN the presence of the raiding party Sri Babu Lal himself had taken out a yellow plastic packet from an earthen jar wherein some rice was also kept and also handed over that packet to Sri R. S. Yadav, INspector. This yellow packet contained heroin weighing 62 gm. INspector Sri R. S. Yadav then at the spot took two samples (each 5 gm in weight) from that yellow packet and kept the sample in two separate plastic packets. The remaining contraband substance was kept in third packet. All the packets were duly sealed and the INspector also got the signatures of the witnesses in whose presence they were sealed. A recovery memo was also prepared and it was also read to the witnesses who have also signed it. Signature of Sri Babu Lal Thakur was also taken on that recovery memo. However, Sri R. S. Yadav, INspector was not having his own seal and so the seal from INspector Sri O. P. Verma, one of the members of the raiding party was borrowed for that purpose. After completing necessary formalities the accused was taken into custody and the case was also registered against him. The accused appellant was produced before the Chief Judicial Magistrate by INspector Sri R. S. Yadav on 13-7-1997 and on that very day the Court's order was also obtained for keeping the heroin and the packets in the double lock maintained at CBNP Cell, Ghazipur. The permission was accorded and the accused appellant was sent to the judicial custody. The investigation of the case was made by Sri Hari Ram (PW 5), INspector CBNP Cell, Ghazipur. He collected necessary documents and also recorded the statements of witnesses and also obtained the chemical examiner's report confirming the substance to be heroin and after investigation the complaint was filed before the Court below. In support of the contention the prosecution examined Sri Jamshed Ali, a constable from CBNP Cell, Ghazipur who is said to have collected the sealed packet of heroin samples alongwith the necessary letter and documents from Sri P. K. Mukherjee, the then Superintendent of CBN Cell, Ghazipur and carried the same for chemical analysis to Government Opium Factory at Neemuch in Madhya Pradesh. PW 2 Sri Kamlakar Pandey, Constable in CBNP Cell was the member of the raiding party and was also present in the house when the search was made. PW 3 Sri R. S. Yadav, Inspector was the leader of the party, stated all with regard to the information received by him and after fulfilling the necessary formalities raid was arranged by him. The search was also documented. PW 4 Sri O. P. Verma another Inspector of CBNP Cell, Ghazipur had not gone inside the house alongwith other persons of the raiding party but his seal was used by Sri R. S. Yadav, Inspector. Lastly Sri Hari Ram, Inspector of CBNP Cell, Ghazipur was also examined by the prosecution. In his statement under Section 313 of the Code of Criminal Procedure (which is herein after referred to as 'the Code') Sri Babu Lal Thakur made it clear that since he is engaged in the barber's profession, some dispute in the village on account of non-increase of remuneration in cash and kind had arisen and on that count he and his other family members made it clear that they would no longer do barbering work at the residences of the Yadav community. Sri Vishwa Nath Yadave is village Pradhan and so in connivance with the Inspector of Police this entire dramatic search was arranged. The leader of CBNP Cell is also Yadav and he used to visit his place. He was the main person in fabricating this case.
(3.) IN his defence Sri Trijugi Nath Rai and Sri Seth Nath @ Shesh Nath were examined. They made the disclosure that the police officer went to the extent of demanding Rs. 20,000 towards fine for their non- co-operative attitude with the people of Yadav community. The learned trial Court on the basis of the evidence and materials adduced by the prosecution came to the conclusion that the provisions of Sections 42 (1) and (2) and 52-A of the Act have been complied with by sending the statement of Sri Surya Nath Maurya to the senior officer of the CBNP Cell by Sri R. S. Yadav, Inspector. There was further no need for having recorded the information afresh and to have sent the same to the senior officer. Further it was also held that the members of the searching party have given clear description with regard to the search and their testimony cannot be said to be doubtful. Further in the matter of the search of the house there was no need for ensuring the compliance of Section 50 of the Act. It was also concluded that since the recovery memo bears the signatures of all the seven members of the raiding party who went inside the house and further the signatures of the other members of the raiding party, who remained outside, would not materially effect the merits of the case because they were the members of the raiding party.;