SIDDHARTHA VARMA,J. - (1.) This criminal appeal has been preferred by the appellant Vinod Kumar Yadav, under section 374(2) of Code of Criminal Procedure, 1973 (For short Cr.P.C.) against the judgement and order dated 31.08.2010 passed by Additional District Judge/Fast Track Court-2, in Special S.T. No. 76 of 2008 (State v. Vinod Kumar Yadav) relating to case crime no. 747 of 2008, under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act (For Short NDPS Act) Police Station Kasya, District Kushinagar at Padrauna, whereby the appellant was convicted and sentenced under Section 8/20 of the NDPS Act with rigorous imprisonment of 15 years along with a fine of Rs. 1,50,000/-. In default he was to undergo two years of additional simple imprisonment.
(2.) Briefly stated, the prosecution story was that upon an information being received by the Special Operations Group (For short SOG) comprising Sub Inspector Ranvijay Kumar Singh, Constable Govind Agarwal, Constable Nagendra Yadav, Constable Anil Tiwari and Constable Dhananjay Rai on 17.07.2008 that certain criminals with illegal arms were crossing the Kasya Thana, reached the spot on a Jeep numbered U.P. 57G 0016 with a Driver-Laxman Prasad. Before proceeding to the site in question, the SOG informed the Thanadhyaksha, Kasya, Vinod Chandra Srivastava and reached the site at around 4.30 A.M. where supposedly the criminals were to reach. In the light of a torch, upon reaching the site, the SOG sighted the criminals, and ordered them to stop. However, with an intention to kill, the accused unsuccessfully fired upon the SOG personnel, who with alacrity arrested three out of the five who were present. They gave out their names as Vinod Kumar Yadav son of Natthu Yadav, Jai Kumar son of Adalat and Arvind Yadav son of late Baljeet Yadav, respectively. When Vinod Yadav was searched, then a black coloured bag was found hanging under his right shoulder, and upon being asked about it contents he revealed that it had charas which he had brought from Bihar and was taking to his hometown. The accused Vinod Kumar Yadav was apprised of his right to get himself searched by a Gazetted Officer but he was confident that Sub Inspector Ranvijay Kumar Singh would faithfully undertake the search and got himself searched by him. Upon being searched it was found the bag contained three yellow coloured plastic bags, which was charas in the form of rods. The accused guessed that the weight of charas recovered from him was about 3 Kgs. However, to get the exact weight, upon being directed by Sub Inspector Ranvijay Kumar Singh, Constable Govind Agarwal arranged for a weighing scale (Taraju) and the confiscated charas was found weighing 3 Kgs. Fifty grams of the confiscated charas was kept in a separate plastic bag as a sample was required to be sent to the laboratory. The remaining 2 Kgs. and 950 Gms. of the contraband was kept in a separate bag. Both plastic bags were separately kept. A copy of the recovery memo was prepared and was handed over to the accused-appellant. Thereafter, the case was got registered. Upon investigation, charge sheet was forwarded by the police to the Court, which framed charges under Sections 8/20 of the N.D.P.S. Act against the appellant Vinod Kumar Yadav. The appellant pleaded not guilty and asked for trial. The prosecution led its evidence. The witnesses were examined and cross-examined. Thereafter, the statement of the accused was recorded under section 313 of Cr.P.C., 1973 who denied carrying of the contraband and stated that the prosecution witnesses were not to believed. He further stated that the police had apprehended him from his house and that all the confiscation, which was shown of the contraband was in fact planted on him. After considering the case of the prosecution and the defence of the accused the Trial Court concluded that the appellant was in possession of 3 Kg. contraband (charas) and thereafter, sentenced him to undergo rigorous imprisonment for 15 years along with a fine of Rs. 1,50,000/- with the default Clause that in case of non payment of fine the appellant was to further undergo a simple imprisonment of two years.
(3.) Learned counsel for the appellant has submitted that there were such lapses on the part of the investigating agency that if they were properly analyzed they would render the conviction absolutely bad. He submitted:- i) There were over-writings and cuttings in the recovery memo. ii) In the arrest memo, the name of the arrested accused Vinod Kumar Yadav was mentioned as Jai Kumar Yadav (Exhibit-2). iii) The signature of Viond Yadav as was made on the memo of arrest was very different from the signature on his statement under Section 313 Cr.P.C., 1973 iv) The manner in which the sample was collected was also defective. In the beginning the SOG had only found some country made arms in possession of the accused and had found any bag containing charas. However, later on the bag was found, which, according to the learned counsel meant that the bag was planted. v) The next submission was with regard to the fact that even though the police force could have found independent witnesses no effort was made to get one. When Constable, Govind Agarwal (P.W.4) was directed to bring a weighing scale (Taraju) and weights (Baat) from the nearby village to weigh the contraband, then Constable Govind Agarwal (P.W.4) had simply returned with the weighing scale himself. If the constable was bringing the weighing scale from a village then he could have definitely requested the owner of the weighing scale to have accompanied him and he could have become an independent witness. vi) Still further it has been argued that the weighing scale and weights were produced in evidence and one does know what kind of weighing scale was used to weigh the contraband. vii)It has been further submitted that the contraband was weighing 3 Kgs. Fifty grams were allegedly segregated. Learned counsel submitted that when there was no weight (batt) of fifty grams then how the team concluded that the sample was weighing fifty grams only. The P.W.3 had been able to specify as to how the 50 gms. sample was segregated when there was no weight (batt) of 50 gms available. Further, only from one Rod, the 50 gms. were taken out, meaning thereby the Charas of the other Rods was got tested at all. viii) Learned counsel for the appellant has very forcefully submitted that the entire confiscated contraband was brought to the malkhana of the nearest Police Station. There is no mention as to how the sample was sealed. No seal was found on it. ix) What is more, it has been argued that without getting an entry done in the malkhana, the sample was sent to the Chemical Laboratory at Varanasi. He has submitted that in AIR 2009 Supreme Court 432, Hardip Singh v. State of Punjab , it has been laid down that it was the duty of the person, who had confiscated the contraband to put his seal and, thereafter, send it to the malkhana and from the malkhana after getting the proper permission from the Magistrate, the sample should have gone to the Chemical Laboratory. Learned counsel submits that in the instant case no such thing was done. All these clearly go to show that definitely there was violation of the provisions of Sections 52 and 55 of the N.D.P.S. Act, 1985. x) The sample was taken by Constable Awadh Prasad to the laboratory and the report of the laboratory came back after a gap of two months by the very same constable. But if his sample signatures on the document dated 23.07.2008 are seen and compared with those on the document dated 23.09.2008 by which he had brought back the report with the sample, it clearly shows that two different persons had put their signatures, making it doubtful as to whether the same sample was at all taken. xi) Learned counsel for the appellant has further submitted that there was a clear violation of Section 50 of the N.D.P.S. Act as the contraband, though was found from a bag, but was actually on the person of the accused. The accused was never told of his right to get himself searched in the presence of a Gazetted Officer. Learned counsel for the appellant has further submitted that even, if the case was covered under Section 50 of the N.D.P.S. Act, the search should have been made in compliance with section 100 of the Cr.P.C., 1973 This having been done, the recovery was absolutely a sham recovery. xii) As after the search, recovery and seizure, the higher officials, were informed in writing, the provisions of Sections 42 and 57 of the NDPS Act were also violated. An information on the radio transmitters was sufficient. (2009) 8 SCC 539 (Karnail Singh v. State of Haryana) and (2016) 11 SCC 687 (State of Rajasthan v. Jag Raj Singh) are two such decisions, which support the case of the appellant.;